DEACTIVATED JUDICIARY

DEACTIVATED JUDICIARY

DEACTIVATED JUDICIARY NEED FOR RE ACTIVATION

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In recent times, when India was already struggling with various legal, political, and social issues, corona virus disease (COVID -19) entered as a pandemic. Not only India but whole world is struggling with this pandemic. We already knew India works on three organ of government i.e.; Legislature, Executive and Judiciary, we have seen legislature is working on making various law to prevent the healthcare sector also people and executive also busy enforcing lockdown and taking safety measure but somehow our third organ i.e. Judiciary  disappointed us it does not take action as we are hoping it could have taken, what are the main reason why the courts does not  taking any cognizance in these struggling days, why the reliability on judiciary is decreasing ?  the question is hard to answer, but as we know the courts acts many time but importantly when we file PIL but not on sole discretion. The adjudication of the rights can be questioned here, as we know Indian courts only recognize the negative right properly not the positive right.  The immediate question comes in the mind what is negative right and what is positive rights and what is adjudicatory rights.

A negative right, or negative freedom, means freedom from something. Your negative right imposes a negative duty on others, meaning a duty to do nothing and not interfere. My negative freedom requires only that you respect the right by not preventing me in doing it. Examples of negative rights are the right to live, to be free, freedom of speech, freedom of religion, freedom from violence, freedom from slavery, and property rights.

A positive right, or positive freedom, means freedom to something. Thus, your positive right places a positive duty on others, i.e. a duty to offer something or act in a certain way. My positive right requires you to respect it by complying with it. Examples of positive rights are the rights to free schooling, free healthcare, a job, and a minimum wage also the social and economic rights. 

Adjudication is a legal ruling or judgment, usually final, but it can also refer to the process of settling a legal case or claim through the court or justice system. It usually refers to the final judgment or pronouncement in a case that will determine the course of action taken regarding the issue presented. When the rights which can be adjudicated in Court called adjudicatory rights.

Recently Delhi High Court asked the UGC(University Grant Commission) and DU(Delhi University)  on the mode of conduct of the exam of final year student, these question also asked in a PIL filled by many students, the main thing which remains in the question that why the Courts ignoring the Human Right Violation, not taking the Sue Motto cognizance on violation of social and economic rights like DPSP, the answer is simple Indian Courts works on the violation of a right not on the state duty means the can adjudicated on majorly on negative rights, not on the positive rights, if the court start the adjudication on positive right it will be beneficial to the citizen of country. Recently the India is fighting with Corona Virus disease and the flood in North Eastern area, the government is not providing the adequate facility to the flood victims and the Courts also not taking any action regarding the same.

To put this in the word of Justice P.N. Bhagwati who advocated the adjudication of positive right held in the case of Minerva Mill he said ; “The Indian Constitution is founded on the bedrock of the balance between Fundamental Rights and Directive Principle of State Policy. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. The harmony and balance is an essential feature of the basic structure of the constitution”

Jusctice Bhagwati highly emphasize on the need off the adjudication of positive rights he is the one who introduce the concept of PIL(Public Interest Litigation) in India. He thinks it is necessary for ensuring the life to every person, life not only means the right to life but basic amenity to it like right to education etc.

For re activating the judiciary from its silent position to the working mode we highly need the adjudication of the positive right

The adjudication of positive rights often encroaches upon the political options of governments notably with regard to the allocation of resources. Courts often have to make decisions regarding balancing between competing rights, for example, the right to freedom of speech versus the right to privacy. Given the indivisibility, interdependence and interrelatedness of all human rights it is therefore reasonable to assert that the protection of positive rights ought to have little significance without the effectual protection of economic, social and cultural rights.  The justiciability of these rights can be seen in three steps, namely, the scope of protection offered by these rights, second, an interference with the right concerned, and finally, the analysis consisting a ground for justification. The justiciability of these rights are variable. The economic and social rights will best be protected when translated into strong constitutional guarantees. However, while this appears to be the most effective and legitimate means of implementation, it also happens to be the most unlikely scenario, given the lack of political will for a constitutional amendment to that effect. As a final methodological step, rights adjudication regularly involves a proportionality check, this element significantly changes when we are faced with a State’s omission to act in violation of its duty to ensure the enjoyment of a right. The appropriate assessment in this context relies on the kind of criteria identified as key components of the test of reasonableness, which includes the consideration of minimum core obligations, equality aspects and the prohibition of regressive measures. Finally, these findings demand a re-evaluation of the options for the endorsement of economic and social rights in law. Therefore, adjudication of a set of positive rights involve ensuring implementation of the mechanism for enforcement of economic, social and cultural rights, they, that is why, go hand in hand.

REFERENCES

D, M. (1991). ‘The Human Rights Committee; Its role in the development of International Covenant on Civil and Political rights. Oxford: Clarendon Press.

positive-and-negative-rights. (2019, July 8). Retrieved July 27, 2020, from www.liberalistene.org: https://www.liberalistene.org/knowledge/positive-and-negative-rights/

Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980, 1980 AIR 1789, 1981 SCR (1) 206

Paul W. Kahn, American Hegemony and International Law Speaking Law To Power: Popular Sovereignty, Human Rights, And The New International Order. I CHI. J. INT’L L. I, 5 (2000).

Beddard R. & Hill D. (1992) ‘Economic, Social and Cultural Rights: Progress and Achievement’ London: Macmillan

International Covenant on Civil and Political Rights (1966)

NITIN SONI

Student of- Dharmashastra National Law University Jabalpur

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