Rights in the Indian Constitution

Rights in the Indian Constitution

Introduction

• A constitution establishes the structure of government and its various organs, defining relationships between them.

• It limits the powers of the government.

• It ensures a democratic system where individuals possess certain rights.

• Fundamental Rights are listed in Part three of the Constitution of India.

• The scope of rights has evolved and expanded over the past fifty years.

The Importance of Rights (examples)

• In 1982, contractors for the Asian Games employed poor construction workers at less than minimum wages.

• Social scientists petitioned the Supreme Court, arguing that this was forced labor and a violation of the Fundamental Right against exploitation.

• The court upheld the plea and ensured that workers received prescribed wages.

• Machal Lalung, arrested at 23 and deemed mentally unstable, spent 54 years in judicial custody without trial, highlighting the importance of fair and speedy trials as a component of the right to life and liberty.

• The case underscores the necessity of rights being available in practice, not just granted by the Constitution.

• The constitutional guarantee of the right against exploitation ensured justice to workers for rightful wages.

Bill of Rights

• A democracy must ensure individual rights are recognized and protected by the government.

• Most democratic countries list citizens' rights in a 'bill of rights' within their constitution.

• This prohibits the government from acting against individual rights and provides remedies for violations.

• Rights are protected from threats by other individuals, private organizations, and the government itself.

• Motilal Nehru committee had demanded a bill of rights as far back as in 1928.

• The protection of these rights are included in the Constitution.

Fundamental Rights in the Indian Constitution

• During the freedom struggle, leaders recognized the importance of rights and demanded their respect from British rulers.

• The Constitution lists specially protected rights called 'fundamental rights'.

• These rights are considered so important that the Constitution makes special provisions for their protection.

• Fundamental Rights are protected and guaranteed by the constitution, unlike ordinary legal rights which are protected by ordinary law.

• Fundamental Rights can only be changed by amending the Constitution itself.

• The judiciary can declare executive and legislative actions illegal if they violate fundamental rights or restrict them unreasonably.

• Fundamental rights are not absolute; the government can impose reasonable restrictions.

Right to Equality (mentions article 16)

• Right to equality seeks to eliminate discrimination based on caste and gender.

• Guarantees equal access to public places like shops, hotels, entertainment venues, wells, bathing ghats, and places of worship, irrespective of caste, creed, color, sex, religion, or place of birth.

• Prohibits discrimination in public employment.

• Abolishes untouchability.

• The state shall confer no title on a person except those who excel themselves in military or academic field.

• Strives to make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens.

• The Preamble mentions two things about equality: equality of status and equality of opportunity.

• Equality of opportunity means that all sections of the society enjoy equal opportunities.

• Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of right to equality.

Right to Freedom (mentions article 21)

• Equality and freedom or liberty, are the two rights that are most essential to a democracy.

• Liberty means freedom of thought, expression and action.

• Freedoms are defined in such a manner that every person will enjoy her freedom without threatening freedom of others and without endangering the law and order situation.

• No citizen can be denied his or her life except by procedure as laid down under the law.

• No one can be arrested without being told the grounds for such an arrest.

• If arrested, the person has the right to defend himself by a lawyer of his choice.

• It is mandatory for the police to take that person to the nearest magistrate within 24 hours.

• The magistrate, who is not part of the police, will decide whether the arrest is justified or not.

• Article 21: Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.

• This right also includes right to live with human dignity, free from exploitation.

• The court has held that right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.

Preventive Detention (article 22 missing)

• A person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above mentioned procedure.

• It means that if the government feels that a person can be a threat to law and order or to the peace and security of the nation, it can detain or arrest that person.

• This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review.

• There is a clear tension between right to life and personal liberty and the provision for preventive detention.

• Each of these is subject to restrictions imposed by the government.

• Right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc.

• Freedom to assemble too is to be exercised peacefully and without arms.

Rights of Accused (3 rights mentioned)

• No one is guilty unless the court has found that person guilty of an offence.

• A person accused of any crime should get adequate opportunity to defend herself or himself.

• To ensure a fair trial in courts, the Constitution has provided three rights:

  • no person would be punished for the same offence more than once,

  • no law shall declare any action as illegal from a backdate, and

  • no person shall be asked to give evidence against himself or herself.

Right Against Exploitation

• Prohibits forced labor without payment (begar).

• Prohibits buying and selling of human beings and using them as slaves.

• Forbids employment of children below the age of 14 years in dangerous jobs like factories and mines.

Right to Freedom of Religion

• Everyone enjoys the right to follow the religion of his or her choice.

• Freedom of religion also includes the freedom of conscience.

• Freedom of religion includes the freedom to profess, follow and propagate any religion.

• The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.

• The government can interfere in religious matters for rooting out certain social evils. For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice.

• The Constitution has guaranteed the right to propagate one’s religion. This includes persuading people to convert from one religion to another.

• The Constitution does not allow forcible conversions. It only gives us the right to spread information about our religion and thus attract others to it.

Equality of All Religions

• The government must extend equal treatment to different religions.

• India does not have any official religion.

• We don’t have to belong to any particular religion in order to be a prime minister or president or judge or any other public official.

• The institutions run by the state will not preach any religion or give religious education nor will they favour persons of any religion.

• The objective of these provisions is to sustain and nurture the principle of secularism.

Cultural and Educational Rights

• One of the fundamental rights is the right of the minorities to maintain their culture.

• Minority status is not dependent only upon religion, linguistic and cultural minorities are also included in this provision.

• Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section.

• Such communities have a culture, language and a script of their own, and have the right to conserve and develop these.

• All minorities, religious or linguistic, can set up their own educational institutions. By doing so, they can preserve and develop their own culture.

• The government will not, while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.

Right to Constitutional Remedies

• It gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.

• The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

• The courts can issue various special orders known as writs.’.

  • Habeas corpus: A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.

  • Mandamus: This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.

  • Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.

  • Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.

  • Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

• The National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, etc. These institutions protect the rights of women, minorities or Dalits.

• The National Human Rights Commission has also been established by law to protect the fundamental and other kinds of rights.

Human Rights Commission

• The real test of the rights given by any constitution is in their actual implementation. The poor, illiterate and the deprived sections of the society must be able to exercise their rights.

• The National Human Rights Commission (NHRC) is composed of a former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights.

• The commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights; visit to jails to study the condition of the inmates; undertaking and promoting research in the field of human rights etc.

• The commission does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.

Directive Principles of State Policy (part 4)

• These guidelines are ‘non-justiciable’ i.e., parts of the Constitution that cannot be enforced by the judiciary.

• The list of these guidelines is called the Directive Principles of State Policy.

• The chapter on Directive Principles lists mainly three things:

  • the goals and objectives that we as a society should adopt;

  • certain rights that individuals should enjoy apart from the Fundamental Rights; and

  • certain policies that the government should adopt.

• The governments from time to time tried to give effect to some Directive Principles of State Policy. They passed several zamindari abolition bills, nationalised banks, enacted numerous factory laws, fixed minimum wages, cottage and small industries were promoted and provisions for reservation for the uplift of the scheduled castes and scheduled tribes were made.

• Directive Principles include the right to education, formation of panchayati raj institutions all over the country, partial right to work under employment guarantee programme and the mid-day meal scheme etc.

Fundamental Duties of Citizens (constitution part 4A)

• In 1976, the 42nd amendment to the Constitution was passed. Among other things, this amendment inserted a list of Fundamental Duties of Citizens. In all, ten duties were enumerated.

• The Constitution does not say anything about enforcing these duties.

• As citizens, we must abide by the Constitution, defend our country, promote harmony among all citizens, protect the environment.

• Our Constitution does not make the enjoyment of rights dependent or conditional upon fulfilment of duties. In this sense, the inclusion of fundamental duties has not changed the status of our fundamental rights.

Relationship Between Fundamental Rights and Directive Principles

• Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things.

• Fundamental Rights mainly protect the rights of individuals while directive principles ensure the well-being of the entire society.

• It can come in conflict with the Fundamental Rights of the citizen.

• The government claimed that rights can be abridged for giving effect to Directive Principles. This argument assumed that rights were a hindrance to welfare of the people.

• The court held the view that Fundamental Rights were so important and sacred that they cannot be limited even for purposes of implementing Directive Principles.

Right to Property

• The Constitution made it clear that property could be taken away by the government for public welfare.

• Since 1950, government made many laws that limited this right to property. This right was at the centre of the long debate over the relationship between rights and directive principles.

• In 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the Constitution and therefore, parliament had power to abridge this right by an amendment.

• In 1978, the 44th amendment to the Constitution removed the right to property from the list of Fundamental Rights and converted it into a simple legal right.

• This related to the amendment of the Constitution. The government was saying that Parliament can amend any part of the Constitution. The court was saying that Parliament cannot make an amendment that violated Fundamental Rights.

• This controversy was settled by an important decision of the Supreme Court in Kesavananda Bharati case. In this case, the court said that there are certain basic features of the Constitution and these cannot be changed by Parliament.