Since the 17th century, if not earlier, human thinking has been veering round to the theory that man has certain essential, basic, natural and inalienable rights or freedoms and it is the function of the state, in order that human liberty may be preserved, human personality developed, and an effective social and democratic life promoted, to recognize these rights and freedoms and allow them a free play. The concept of human rights can be traced to the natural law philosophers, such as, Locke and |Rousseau.

The natural law philosophers philosophized over such inherent human rights and sought to preserve these rights by propounding the theory of "social compact".1 According to LOCKE, man is born "with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature" and he has by nature a power "to preserve his property-that is, his life, liberty, and estate, against the injuries and attempts of other men".2

The idea of guaranteeing certain rights is to ensure that a person may have a minimum guaranteed freedom. The underlying idea in entrenching certain basic and fundamental rights is to take them out of the reach of transient political majorities. The entrenched fundamental rights have a dual aspect. From one point of view, they confer justiciable rights on the people which can be enforced through the courts against the government.

From another point of view, the fundamental rights constitute restrictions and limitations on government cannot take any action, administrative or legislative, by which a fundamental right is infringed. Entrenchment means that the guaranteed rights cannot be taken away by an ordinary law. \

A law curtailing or infringing an entrenched right would be declared to be unconstitutional. If ever it is deemed necessary to curtail an entrenched right, that can only be done by the elaborate and more formal procedure by way of a constitutional amendment. As the Supreme Court has observed,3 the purpose of enumerating fundamental rights in the constitution "is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the government at the Centre or in the state.

In modern times, the concept of the people's basic rights has been given a more concrete and universal texture by the Charter of Human Rights enacted by the United Nations Organization (U.N.O),4 and the European Convention on Human Rights.

The Preamble to the Universal Declaration of Human Rights inter alia declares: "whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". The concept of Fundamental Rights thus represents a trend in the modern democratic thinking.

Fundamental Rights In India

Legislative Perspective
The fundamental rights in India, apart from guaranteeing certain basic civil rights and freedoms to all, all fulfil the important functions of giving a few safeguards to minorities, outlawing discrimination and protecting religious freedom and cultural rights the fundamental rights are part of the basic structure of the constitution. They cannot be contravened or abridged by any statutory or constitutional provision. \

They are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the doctrine of basic structure5. During emergency, however, some curtailment of the fundamental rights does take place. But all these curtailments of fundamental rights are of a temporary nature.

The fundamental rights in the Indian constitution have been grouped under seven heads as follows:

• Right to equality comprising Articles 14 to 18, of which Article 14 is the most important.
• Right to freedom comprising Articles 19 to 22 which guarantee several freedoms, the most important of which is the freedom of speech.
• Right against exploitation consists of Articles 23 and 24.
• Right to freedom of religion is guaranteed by Articles 25 to 28.
• Cultural and educational rights are guaranteed by Articles 29 and 30.
• Right to property is now very much diluted and is secured to some extent by Articles 30-A, 31-A, 31-B and 31-C.
• Right to constitutional remedies is secured by Articles 32 to 35.

These Articles provide the remedies to enforce the Fundamental Rights, and of these the most important is Article 32.

The fundamental rights guarantee certain economic rights. Too much emphasis on these rights might have led to the emergence of a laissez faire economy in India which is now an out of date concept. The right to property also has had a chequered history. Originally it was secured by Articles 19(1)(f) and 31, and the courts were prone to give these provisions a broad perspective thus giving to property rights a better protection.

But now the fundamental right to property has been very much diluted. The development has been discussed fully later. In the nutshell, it may be said that, on the whole, the Supreme Court has displayed judicial creativity of a high order in interpreting the fundamental rights, especially during the last two decades. Reference may be made in this conception inter alia to such landmark Supreme Court cases as Maneka Gandhi, IndraSwahney, Asiad cases.

The Supreme Court has even enunciated the doctrine of implied fundament rights. By and large, barring some exceptions, the Supreme Court has, on the whole, interpreted the fundamental rights in a liberal manner. The court has laid emphasis on this aspect from time to time. For instance, in Pathumma, the court has stated that in interpreting the constitution, "the judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid." But the award of a sentence by the order of a court cannot amount to violation of any fundamental rights6.

On the whole, the Supreme Court has displayed a liberal and creative attitude in interpretation of fundamental rights and this has had a produced influence on the development delineation of the fundamental rights in course of time7.

Justiciability Of Fundamental Rights

Article 13 is the key provision as it gives teeth to the fundamental rights and makes them justiciable. Article 13 is a protective provision and an index of the importance and preference that the farmers of the constitution gave to Part III of the constitution. Article 13 makes the judiciary, and especially the Apex court, as the guardian, protector and the interpreter of the fundamental rights. It is the function of the courts to assess individual laws vis-�-vis the fundamental rights so as to ensure that no law infringes a fundamental rights. It is the function of the courts to ensure that no law infringes fundamental rights.

This is the exercise of its protective role by the judiciary i. e., protecting the fundamental rights from being violated by a statute is declared unconstitutional and void if it comes in conflict with fundamental rights. Article 13 confers a power as well as imposes an obligation on the courts to declare a law void if it is inconsistent with a fundamental rights. This is a power of great consequences for the courts. The Supreme Court has figuratively characterized this role of the courts as that of a "sentinel on the qui vive".

It may however be underlined that the courts do not lightly declare a state unconstitutional because they are conscious of their responsibility in declaring a law made by a democratic legislature void. On the whole, not many statutes have been hit by fundamental rights. However, judicial rev6of administrative action is some what more pervasive than of legislative action. The Supreme Court has further bolstered it's protective role under Art. 13(2) by laying down the proposition that judicial review is the 'basic' feature of the constitution.

This means the power of judicial review cannot be curtailed or evaded by any future constitutional amendment. Protection of the institution of the judicial review is crucially interconnected with the protection of fundamental rights, for depriving the supreme court and other courts of their power of judicial review would mean that the fundamental rights become non-enforceable, "mere adornment ", as they will become rights without remedy.

This idea has been conveyed by Chandrachud, C. J., as follows in Minerva Mills:
"It is the function of the judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled".

The construction confers this protective role on the Supreme Court and high courts. These courts can issue various writs, orders and directions for the enforcement of these fundamental rights by virtue of Articles 32 and 226. This, Article 13 deals with statute law and not with the law declared by the courts, or with the directions or orders made by the supreme court under Article 142.

If the call of the constitutional conscience is to retain meaning, the judges must continuously recall themselves of its value through their tenure. The phrase of this court as the sentinel on the qui vive may have become weather-beaten.

The remark came in a judgment given by Hon'ble Justice DY Chandrachud on 1st October 2020 in the case of Gujarat Mazdoorsabha&anr. V. Union of India (Writ Petition (Civil) No. 708 of 2020). In this judgment, he observed the notification issued by Gujarat Labour and Employment Department as void, granting exemptions to factories in Gujarat from provisions of the Factories Act, 1948 relating to daily working hours, weekly working hours, break for rest, and spread overs of adult workers and payment of overtime wages at double rate viz section 59.

Hon'ble Court held that according to Article 21 and 23 of the Constitution of India, 1950, the notifications, in denying humane working conditions and overtime working wages provided by law, is an insult to worker's right to life and right against forced labor. The observation about sentinel on the qui vive is as follows:-

The Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation.

To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them�Justice PatanjaliSastry immortalized that phrase of this court as the sentinel on the qui vive in our jurisprudence by recognizing it in State of Madras vs. V G Row.

The phrase may have become weather-beaten in articles, seminars and now, in the profusion of webinars, amidst the changing times. Familiar as the phrase sounds, judges must constantly remind themselves of its value through their tenures, if the call of the constitutional conscience is to retain meaning.

Supreme Court As The Sentiel Qui Vive

'Sentinel on the qui vive' is usually translated as a watchful guardian. Qui Vive means watchful or alert. Hon'ble Justice Shastry in his judgment in State of Madras v. VG Row. Union of India & State (1952 SCR 597), had made the following observations: -

What is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted "due process" clause in the Fifth and Fourteenth Amendments. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in the discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental rights," as to which this court has been given the role of Sentinel on the Qui Vive.

"While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute."

Constitutional courts - the Supreme Court and the high courts are constituted to be the protectors and guarantors of the rights and liberties of the people and to ensure that all organs of the state function within the confines of their powers.

But today it is not uncommon or unjustified for right thinking and well meaning people to wonder whether the judiciary, particularly the Supreme Court, is playing its seminal role as the sentinel on the qui vive. There is more fusion than separation a between the legislature and the executive in a parliamentary system. But the judiciary is separate and has to keep its distance.

The relationship between the judiciary and the other wings has to be correct and proper, not cordial. Some struggle and tension is inevitable. Reciprocal influence is a continuing process. Indeed, a Canadian judge, marshal writing about judicial independence a few decades ago, observed that even unavoidable interactions between the top echelons of the judiciary and the executive can be harmful to judicial independence.

International Perspective

Outlook Of International Court Of Justice (ICJ) And International Criminal Court (ICC)

In 2019, Gambia filed a lawsuit against Myanmar in the ICJ, pointing towards the genocide which Rohingyas are facing worldwide. Gambia heavily relied on the findings of the UN fact-finding mission on Myanmar. In October 2019, the head of the mission Mr. MarzukiDarusman told the general assembly that Myanmar is failing in obliging the provision of the Genocide Convention, 1948. He also emphasized the need for a proper investigation and enactment of domestic laws in the country criminalizing genocide.

In an interim verdict, the ICJ ruled that it has the authority to consider a genocide case against Myanmar and approved emergency "provisional measures" compelling Myanmar to halt persecution against Rohingyas, including killing, raping, and destroying homes and villages.

The final verdict is awaited and experts have speculated that the final verdict can encourage global actors to become more sensitive to these issues.

Principle Of Non-Refoulement And Jus Cogens

International law defines the principle of non-refoulement as a guarantee against transferring the refugees and asylum-seekers to the country, where they could face torture, discrimination, persecution, degradable harm, and other serious human rights violations.

In Ktaer Abbas Habib Al Qutaifi and Another v. Union of India and Others, 1999, the High court of Gujrat held that 'The principle of "non-refoulement" is the principle which prevents all such expulsion or forcible return of refugees and should be followed by the Central Government in accordance with Article 51 of the Constitution.

Supreme court while disposing of the petition noted that India is not a signatory of the refugee convention, 1951 but ignored the fact that India is a signatory of the UN convention against torture, 1985 which clearly states that 'Sending a person to another state, where there are substantial grounds for believing that he/she would be subjected to torture and inhumane treatment is contrary to the convention'.

The International Covenant on civil and political rights, 1996 (ICCPR), which India is a signatory of has a clear stand on the right to be free from torture, inhuman conditions, and degradation. Besides these, the principle of non-refoulment has become a Jus Cogens norm, from which no derogation is permitted whatsoever. It is binding upon all the members of the international community. There is no defence available against the violation of the same. Jus Cogens imply absolute restrictions on Genocide, slavery, torture, and other serious human rights violations.

United Nations High commissioner for Refugees (UNHCR) "considers that the practice of Governments including the provisions of national legislation which have traditionally incorporated the principle of non-refoulment corresponds to the criteria for the formation of international customary law i.e., a uniform practice combined with a growing legal conviction".

Manipur HC Judgement On Non-Refoulment And Art.21

Taking the contrary stand of Supreme Court's interpretation of non-refoulment, Manipur High Court on 3rd may in a significant judgment allowed 7 Myanmarese citizens to travel to New Delhi to seek support from United Nations High Commissioner for Refugees (UNHCR). Taking a note of the situation of refugees who fled Myanmar due to ethnic cleansing in Myanmar, Manipur HC said that, these refugees did not enter the country in bad faith or to break laws. Judges of the division bench observed that Article 21 and 14 in a broad sense encompasses the principle of Non-Refoulment within its interpretation.

The high court also observed that "India may not be a signatory of 1951 Refugees convention, but its obligations under other international declarations/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere.

Conclusion
India from eternity has been following the principle of VasudhaivaKutumbakam, which translates to 'The world is one family. India has welcomed Refugees from the past and currently has 300000-400000 refugees in the country. Our governments and courts have welcomed refugees with an open heart. There are protections and fundamental rights available for foreigners and non-citizens. India has proved to be a haven for the persecuted class. Degrading from these principles and international norms could be detrimental for the country.

The international image of the country has already been taking a serious toll from the past few years due to legislation like the Citizenship (Amendment) act,2019, Anti-Conversion acts, FCRA (Amendment) Bill, 2020, etc. Apex court of the country calls itself Sentinel on the qui vive (Watchful Guardian) of the people of the country; it's high time for India to rebuild its international image by committing to the general principles of Equality, Good Neighborliness, and international cooperation.

Written By: Varsha V, B.A.L.L.B (HONS.), 3rd Year