51. That the Constitution (Forty Fourth amendment) Act, 1978 has provided another directive principle under Article 38(1) & (2) that the state shall strive to promote the welfare of the people by securing and protecting a social order and to strive to minimize inequalities in income and endeavor to eliminate inequalities in status facilities and opportunities not only amongst individuals, but also amongst groups engaged in different vocations. 52. Hon’ble Supreme court has taken into account two spheres of dimensions to the right of personal liberty against the sovereign power exercising its functioning with the police power and restrictions imposing procedural safeguard in order to provide the public safety having invasion of individual privacy as susceptible to abuse. The custodian violence and torture by the police adopting third degree of interrogation and other agencies have been deemed to be violative of article 21 and article 22 of the constitution of India. It has been held that the importance of affirmed rights to deter breaches by the violence, torture and even death in police lock up strikes a blow of rule of law. The police who is supposed to provide the protection of citizens is committing such crime under the shield of uniform and authority in the four walls of a police station of lock ups in which victim is being totally helpless. Torture of human being by another human beings is essentially an instrument to impose the will of the strong over the weak by sufferings. These are a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward. Universal declaration of human rights in 1948 in reference to article 5 stipulates, no one shall be subjected to be tortured or to be cruel inhuman or degrading treatment or punishment. The constitutional guarantee provided in article 20 (3) provides that of a person excused of an offence cannot be compelled to be a witness against himself. Article 22 (2) provides that the person arrested or detained in the custody shall be produced before the nearest magistrate within a period of 24-hour of such arrest excluding the time necessary for journey. The accused shall be informed of the ground of such arrest and shall not been denied that right to concern and defend himself by legal practitioner of his choice. The personal liberties is protected under article 21 except according to the procedure established by law. Thus personal liberty is a sacred and cherished right under the constitution (UBI JUS IBI REMIDIUM). 53. That there are virtually no individual fundamental rights except the right conferred under article 19 of the constitution of India, rest are the fundamental duties of the state, which are likely to be enforced for the protection of its citizen. By the gradual advancement of the judicial activism, the basic fundamental duties embodied in our constitution, have now been regarded as enforceable rights of the citizen without taking into consideration as to whether the person, who is coming forward for seeking the enforcement of such duties by the state, may actually deserve for such enforcement under an equitable discretionary jurisdiction of the constitutional courts in India. This is a basic flow in the process of judicial verdict. There is the need that the impact and implementation of the law, which is primarily concerned with a social science, may be able to achieve its objective the concept and the guarantees enshrined under article 14 having two connotation, i.e.. Equality before the law and the equal protection of the law are not the same phraseology, although they appear to serve a common objective to eradicate the social evils of inequalities and discrimination. 54. That Article 14 has a pervasive potency and a versatile quality, equilitarian in its soul, but allergic to discriminatory dictates. It is well known that equality is anti-thesis to arbitrariness. Since the license may not be given to a blind man to drive a car, how worthwhile it may be to give the similar license to a criminal to do every sort of atrocities being committed by indulging into the crime of the innocent people. There are inherent restrictions applicable for the enforcement of the individual personal right under article 19, which empowers the state to enforce reasonable restriction on the exercise of the right of the people in the interest of sovereignty, integrity of India security of the state, friendly relations with foreign state, public order, decency or morality etc. including the incitement to an offence pertaining to the reasonable restrictions regarding freedom of speech and expression, to assemble ,to form associations and freedom to reside and move freely throughout the territory of India.
Posted on: Thu, 12 Jun 2014 03:55:03 +0000