The Future of Rights-Based Litigation in India

  • Sweta Ghosh and Vijoy Kumar Sinha
  • Show Author Details
  • Sweta Ghosh

    Assistant Professor of Law at School of Legal Studies, Seacom Skills University, Bolpur, India

  • Vijoy Kumar Sinha

    Research Assistant at Centre for Regulatory Studies, Governance and Public Policy, The West Bengal National University of Juridical Sciences, Kolkata

  • img Save PDF

Abstract

Indian citizens blessed with several rights which are guaranteed and protected by the Constitution. Representatives of the judiciary have an essential role to play in upholding these rights. However, day by day, it becomes difficult for the Court to handle many cases because we live in a digital era. Technology plays a vital role in our daily lives, creating new rights relating to privacy, cyberspace, etc. To solve these new problems created in this digital era, we need some alternative mechanisms. In this paper, the author tried to find out what will be rights-based litigations in future.

Type

Article

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 808 - 813

DOI: https://doij.org/10.10000/IJLMH.11592

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

A right is an interest recognised and protected by a rule of right. It is an interest, respect for which is a duty, and the disregard of which is a wrong.”

– Salmond[1]

Rights can be interpreted in three main headings: freedom of action (e.g. freedom to travel) but also preventing injury (such as injury to the body) or even receiving services (including such things as public schooling, retirement benefits and medical care).[2]

Litigation means the process of taking a case to a court of law so that a judgment can be made.[3] Therefore, the phrase ‘right based litigation’ means that legal action violates one’s right. When people enter into contracts as members of society, they have some legal rights and duties. The law prevailing in society governs these rights and obligations. As the law’s primary objective is to protect human rights by regulating individuals’ actions within the community, State measures to enforce legal rights must be taken and those who violate those rights punished.[4]

Since the 17th century, it was realised that man has certain essential, fundamental, natural and inalienable rights or freedom. Therefore, the State must recognise and protect these rights or privileges of every individual. In India, due to specific reasons, rights are recognised as fundamental rights by the constitution-makers, and these are: “firstly, the main political party, the Congress, had long been demanding these rights against the British rule. During the British rule in India, human rights were violated by the rules on a vast scale. Therefore, the framers of the Constitution, many of whom had suffered incarceration during the British regime, had a very positive attitude towards these rights. Secondly, the Indian society is fragmented into many religions, cultural and linguistic groups, and it was necessary to declare fundamental rights to give the people a sense of security and confidence.”[5]

The fundamental rights represent individuals’ political freedom while their social and economic freedoms are recognized in the directives. They have a shared goal to achieve together. The other can thus become meaningless and ineffective in the absence of the one. Therefore, fundamental rights and directive principles can be considered complementary and supplementary to each other[6] , and they derive their life-breath from each other. Since fundamental rights are laid down in the Regulation guidelines, failure to implement the Directives by the legislature or the executive may impede the realization of fundamental rights.[7] The Court started constricting basic rights to the guideline principles to resolve this problem.[8] Dismissing the attitude of finding an imbalance between the fundamental rights and the Directive principle, the Court sought to relate fundamental rights to the principles of the Directive for their correct application.

“To mitigate the problems relating to fundamental rights and directive principles, Supreme Court adopted new trends in the name judicial activism, judicial creativity, doctrines, etc. There have been instances in which the Indian judiciary evolved and introduced certain values and norms not specifically mentioned anywhere in the Constitution and tried to apply them to interpret the provisions. The judicial creativity has been used to protect citizens from state actions that are arbitrary and provide the citizens with the rights to which they are entitled as being the citizen of the nation. The basic tools from where the rights can be enforced are Article 32 and 226 of the Constitution by writ petitions. Another new concept is Public Interest Litigation which a person can file in the Court of law whereby the judge interprets the fundamental rights for the betterment of people. Thus a new law takes birth.”[9]

India is in the transitional phase. There are specific sensitive issues that need to be dealt with caution and care, and for that proper amount of judicial creativity is very important. In a large number of cases, the Supreme Court, during the judicial process, adopted creative interpretation and recognised various rights: the right to livelihood,[10] right to go abroad,[11] right to privacy,[12] right against solitary confinement,[13] right to shelter,[14] right to legal aid and speedy trial,[15] right against handcuffing,[16] right to doctor’s assistance,[17] right against public hanging,[18] right to write a book,[19] right to clean air and healthy environment,[20] right against delayed execution,[21] right to free education,[22] right to reputation.[23]

With the emergence of modernisation, globalisation and technological inventions, society becomes a digital era, and various new rights are emerging in cyberspace. As there are no proper statutory laws regarding the cyber world, it is easy to infringe on anyone’s right in the cyber world. “The internet emerged as an unbounded terrain, a place which knows no ends, where freedom becomes the sine qua non of the world of internet. The intellectual property rights regime came forward as the protector of these amazing mental abilities manifested in the form of these creations.”[24]

In one of the Supreme Court’s most progressive decisions, privacy rights[25] were declared a fundamental right intrinsic to Article 21 of the Constitution. The right to privacy judgment creates some difficulty for the enforcement agencies to obtain information on individuals.

With the proliferation of technology in recent years, the verdict’s effect on data privacy is significant. In the practice of collecting data, technology plays an imperative role. The government and private companies can easily trace our digital footprint unimaginably easily. Our interaction, upgraded location, online history etc., expands this digital footprint with more data. Moreover, the right to privacy is undermined by our anonymous privacy information. Websites and social media apps such as Whatsapp, Facebook, etc., is another argument for the right to privacy amid technological change. The massive access to their social media accounts by the data users. The primary question arises regarding infringement of the fundamental right to privacy: can such private firms be prosecuted for any form of violation? In considering this issue, the Supreme Court emphasized that the laws of privacy in the country need to be uncompromising.[26]

Recently in one of the landmark judgment,[27] the Supreme Court has decriminalised Section 377[28]. It is a significant relief to the LGBTQ community where they can love freely without hiding. Merely declare a section as unconstitutional is not sufficient to solve their problems. There also need societal acceptance, and there also be needed some reformation in other existing laws of the country. Such as laws relating to marriage, adoption, maintenance, divorce, child custody, etc.

“The Law Commission of India in its 71st Report on the Hindu Marriage Act, 1955- irretrievable breakdown of marriage as a ground of divorce had suggested. The Commission recommended the inclusion of irretrievable breakdown of marriage as a separate ground of divorce, yet no attention was paid. In Naveen Kohli’s[29] case and several cases, the Supreme Court has strongly argued favouring the inclusion of irretrievable breakdown of marriage as a separate ground of divorce. It is high time that the government should recognise the need of the hour and save many couples from disgrace and humiliation by introducing irretrievable breakdown of marriage as a separate ground of divorce in Section 13 of the Hindu Marriage Act, 1955 and other laws. Dealing with matrimonial remedies.”[30]

Access to information in the internet age is quick, and it is much easier to obtain a piece of individual personal information or background. In its benchmark judgement, the Karnataka High Court recently accepted, applied and approved the ‘right to be forgotten in the Indian framework in recognition of this fact and the sensitive nature of the case in question. The High Court conclusively observed,

This is the line with the trend in western countries of the right to be forgotten in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

In 1995, European Union Data Protection recognized the right to be forgotten. The Member State concerned should give people the right to obtain a correction eraser or block data from the ‘controller’ that was not processed according to the Directive’s provisions of the European Union’s 1995 data protection.[31]

Climate disputes in India are at an early stage. In the course of this, the climatic claims still have to be disputed. There are few examples of climate change, but only in passing. This situation may change. India is rapidly capturing the popular imagination and effects of climate change. The challenges to climate change are becoming increasingly important and urgent, and a variety of climate policies and initiatives at national and national level have been initiated in response. India has a committed and proactive civil society and judicial activist, a gradual enviro-legal body and a distinct cultural litigation of public interest. This indicates that potential litigants are waiting and climate claims are expected to be favoured by the judiciary.[32]

In the face of Indian medical negligence laws, there is little criticism. The main thing is the burden of the proof principle. The complainant has the burden of proof. Thus, if a patient claims malpractice in medicine, the law will require more evidence to support it. Here the actual damage and causal relationship between the injury and the doctors’ failure is brutal to determine for an ordinary human or patient.[33]

Since time evolution man has been struggling. Man is susceptible, and it leads to struggles and strife. Law solves both fundamental and complex problems. Indian courts are one of the oldest courts, but it is now known that Indian courts are becoming inefficient in dealing with pending cases. The scenario was that the problem is still far from resolved, even after more than a thousand fast-track courts have been set up that have already settled millions of cases.

We have entered into an era of the 21st century, a technological advancement period that results in a scientific breakthrough. While technologically progressing, we are much habituated to this system. Slowly we became addicted start relying on technology for each and everything. Through this, we even start to resolve our problem relating to marriage, maintenance, adoption, etc. We are gradually moving towards the fourth generation of human rights. This shows that virtual world speed affecting the legal world. All these things which we are facing today in our daily life cannot be mitigated through right based litigation.

The concept of the mechanism of alternative dispute settlement (see ADR below) can replace conventional dispute settlement methods. If people cannot begin any negotiations or reach a settlement, ADR offers to resolve every type of matter, including civil, commercial, industrial, and family issues. In general, ADR uses neutral third parties to communicate and resolve disputes in the parties. It is a way of maintaining social cooperation between individuals and groups and of reducing hostility.

ADR mechanism provides the Indian judiciary with scientific development techniques that help to reduce court burden. ADR offers different settlement modes, such as arbitration, conciliation, mediation, negotiation and Lok Adalat.

Therefore, there is a dire need to include ADR in our judiciary to solve the litigation process speedily.

In an age when India is witnessing a staggering rise in industrialization as well as digitization, the country is correspondingly facing privacy relating issues, several pending cases increase day by day, environmental issues like climate change problems are also there. At the outset, there is no denying that these drastic changes affect the rights of the people of this country.

Though the judiciary has acted in activism to mitigate these issues, in this fast-moving era of modernization and digitization where new rights relating problems have arisen, the court alone cannot solve all these litigations. Therefore we need to shift our focus on finding an alternative. In this regard, ADR plays a vital role if it functions properly.

*****

[1] Salmond, Jurisprudence 181( Stevens and Haynes, London, fourth edition, 1915).

[2] Rex Martin, Concept of Rights, 24 Oxford University Press,  available at: http://www.oxfordscholarship.com /mobile/view/10.1093/0198292937.001.0001/acprof-9780198292937-chapter-3(last visited on 21/02/2021)

[3] Cambridge Dictionary, available at: http://dictionary.cambridge.org/dictionary/english/litigation (last visited on 21/02/2019).

[4] Dr. N.V.Paranjpee, Studies in Jurisprudence and Legal Theory 245 (Central Law Agency, Allahabad, 3rd Edition, 2001).

[5] Rajib Hassan, “The origin and concept of fundamental rights in the constitution of US, UK and India: A comparative analysis”, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296804 (last visited 27/02/2021).

[6] Minerva Mills v. Union of India, AIR 1980 SC 1789.

[7] People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

[8] C. & B. Borading and Lodging v. State of Mysore, AIR 1970 SC 2042.

[9] Dinesh Kumar Sharma and Narendra Kumar Jaguri, Judicial Process 28-51 (Uttrakhand Open University, Baldwani,2013).

[10] Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors, 1985 SCC (3) 545.

[11] Maneka Gandhi  v. Union of India, 1978 AIR 597.

[12] Kharak Singh v. The State Of U.P. and others, 1963 AIR 1295.

[13] Sunil Batra v. Delhi Administration, 1980 AIR 1579.

[14] Chameli Singh v. State of U.P., Appeal (civil) 12122 of 1995.

[15] M.H. Hoskot v. State of Maharashtra, 1978 AIR 1548.

[16] D. K. Basu v. State Of West Bengal, WP (Criminal)  592 of 1987.

[17] Parmananda Katara v. Union of India, AIR (1989) 2039.

[18] Attorney General of India v. Lachma Devi, AIR 1986 SC 467.

[19] State of Maharashtra v. Prabhakar Pandurang, AIR 1966 SCC 424.

[20] M. C. Mehta v. Union Of India, 1987 SCR (1) 819.

[21] Sher Singh v. State of Punjab, AIR 1983 SC 465.

[22] Mohini Jain v. State of Karnataka, 1992 AIR 1858.

[23] State of Bihar v. Lal Krishna Advani, AIR 2003 SC 3357.

[24] Talat Fatima, Cyber Crimes 330 (Eastern Book Company, Lucknow, 2016).

[25] Justice K.S. Puttuswamy (Retd.) and Ors. v. Union Of India and Ors., WP (Civil) 494 of 2012

[26] Right to Privacy vis-a-vis Technology, available at: https://www.myadvo.in/blog/right-to-privacy-vis-a-vis-technology/ (last visited 27/02/2021).

[27] Navtej Singh Johar and Ors. v. Union of India Thr. Secretary Ministry of Law and Justice, WP (Criminal) 76 of 2016.

[28] See, Section 377, Indian Penal Code, 1860.

[29] Naveen Kohli v. Neelu kohli, Appeal (Civil) 812 of 2004.

[30]  Vijender Kumar, “Irretrievable Breakdown of Marriage: Right of a Married Couple” 5 NLR 38 (2010).

[31] Arunima Bhattacharya, “In A First An Indian Court Upholds The ‘Right to Be Forgotten’”, available at: https://www.livelaw.in/first-indian-court-upholds-right-forgotten-read-order/ (last visi. India has a strong and proactive civil society, an active judiciary, gradual jurisprudence and a culture of unrivaled public interest. That not only indicates that potentially litigants are waiting in the wings but that the judiciary is likely to favor climate-related claimsted: 27/02/2021).

[32] Lavanya Rajamani, Rights Based Climate Litigation in the Indian Courts: Potential, Prospects & Potential Problems, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2464927 (last visited 27/02/2021s)

[33] Disha Pareek, Medical Negligence and Law in India- An Analysis, available at: https://blog.ipleaders.in/medical-negligence-law-india-analysis/ (last visited 27/02/2019).