Chapter Notes

The Importance of Rights

A constitution does more than just set up the government; it also places limits on the government's power to ensure that all people can enjoy certain rights. The real-world importance of these rights can be seen in situations where they are either protected or violated.

Bill of Rights

A democracy must guarantee that individuals have certain rights and that the government recognizes and protects them. To ensure this, most democratic countries list the rights of citizens directly in their constitution.

• A ‘bill of rights’ is a list of rights mentioned and protected by a country's constitution.
• Its purpose is to prohibit the government from acting against the rights of individuals.
• It also ensures there is a remedy, or a way to seek justice, if these rights are violated.

A constitution protects an individual's rights from two main threats:

1. Other individuals or private organizations: In these cases, the government is expected to step in and protect the individual.
2. The government itself: Organs of the government like the legislature, executive, or even the judiciary might violate a person's rights while carrying out their functions. The bill of rights protects against this.

Fundamental Rights in the Indian Constitution

During India's freedom struggle, leaders understood the importance of rights and demanded them from the British. As far back as 1928, the Motilal Nehru committee had demanded a bill of rights. When India became independent, there was a consensus on including and protecting rights in the Constitution.

The rights that were specially protected were called ‘fundamental rights’.

• Why "Fundamental"? These rights are so important that the Constitution lists them separately and has special provisions for their protection. The Constitution itself ensures the government cannot violate them.
• Different from Ordinary Rights:
  • Ordinary legal rights are protected by ordinary law, but Fundamental Rights are guaranteed by the Constitution of India.
  • The legislature can change ordinary rights through a simple law-making process. However, a fundamental right can only be changed by amending the Constitution itself.
• Judicial Protection: The judiciary has the power and responsibility to protect Fundamental Rights. It can declare any executive or legislative action illegal if it violates these rights in an unreasonable way.

Bill of Rights in the South African Constitution

Inaugurated in December 1996 after the end of the Apartheid government, the South African Constitution has one of the most extensive bills of rights in the world. It is considered a "cornerstone of democracy in South Africa" and forbids discrimination on many grounds, including race, gender, age, and disability. A special constitutional court enforces these rights.

Some of the rights included in the South African constitution are:

• Right to Dignity and Privacy
• Right to fair labour practices
• Right to a healthy environment
• Right to adequate housing, health care, food, and water
• Children's rights and the right to education
• Right to information

Right to Equality

The Right to Equality aims to eliminate various forms of discrimination and establish a true democracy where all citizens have equal dignity and status.

Key provisions under the Right to Equality include:

• Equality before law: Everyone is subject to the same laws.
• Prohibition of discrimination: The state cannot discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth.
• Equal access: All citizens have equal access to public places like shops, hotels, wells, and places of worship.
• Equality of opportunity in public employment: The state cannot discriminate against anyone in matters of employment.
• Abolition of Untouchability: The practice of untouchability, a crude form of inequality, has been abolished.
• Abolition of titles: The state cannot confer titles on people, except for military or academic honours.

Equality of Opportunity and Reservations

The Preamble to our Constitution mentions equality of status and equality of opportunity. In a society with deep-rooted social inequalities, simply giving everyone the same opportunities isn't enough.

• The Constitution allows the government to implement special schemes for the betterment of certain sections of society, such as women, children, and socially and educationally backward classes.
• Article 16(4) of the Constitution clarifies that a policy like reservations in jobs and admissions for backward classes is not a violation of the right to equality. It is seen as a necessary measure to fulfill the right to equality of opportunity for all.

Right to Freedom

Freedom and equality are two of the most essential rights in a democracy. Liberty means the freedom of thought, expression, and action. However, this freedom is not absolute; it must be balanced with the freedom of others and the need for law and order.

Right to Life and Personal Liberty

This is the most important right among the rights to freedom.

• Article 21 states that no person can be deprived of their life or personal liberty except according to the procedure established by law.
• This means no one can be arrested without being told the reason for their arrest.
• An arrested person has the right to be defended by a lawyer of their choice and must be presented before the nearest magistrate within 24 hours. The magistrate, who is independent of the police, decides if the arrest is justified.

Preventive Detention

Ordinarily, a person is arrested after they have committed an offence. However, there is an exception.

• Preventive detention is when a person is arrested simply on the apprehension that they might engage in unlawful activity.
• If the government feels a person is a threat to law and order or national security, it can detain them without following the usual procedure.
• This detention can only be for three months. After that, the case must be reviewed by an advisory board.
• This provision is controversial because it can be misused by the government and creates a tension with the Right to Life and Personal Liberty.

Other Freedoms

The Right to Freedom also includes:

• Freedom of speech and expression
• Freedom to assemble peacefully and without arms
• Freedom to form associations or unions
• Freedom to move freely throughout India
• Freedom to reside and settle in any part of India
• Freedom to practice any profession, or carry on any occupation, trade, or business

These freedoms are not absolute and are subject to reasonable restrictions imposed by the government for reasons like public order, peace, and morality.

Rights of Accused

To ensure a fair trial, the Constitution provides three rights to a person accused of a crime:

1. No person can be punished for the same offence more than once.
2. No law can declare an action illegal from a backdate.
3. No person can be asked to give evidence against themselves.

Right against Exploitation

In India, millions of underprivileged people are vulnerable to exploitation. This right aims to protect them.

• It prohibits begar (forced labour without payment) and other forms of forced labour.
• It prohibits the buying and selling of human beings (human trafficking).
• It forbids the employment of children below the age of 14 in dangerous jobs like factories and mines.

Right to Freedom of Religion

In a democracy, every individual has the right to follow the religion of their choice. This is a hallmark of India's democratic principles.

Freedom of Faith and Worship

• Everyone is free to choose, practice, profess, and propagate any religion. This also includes the freedom of conscience, which means a person can choose to follow no religion at all.
• Limitations: This right is not unlimited. The government can impose restrictions to protect public order, morality, and health.
• The government can also interfere in religious matters to eliminate social evils. For example, the government has banned practices like sati, bigamy, and human sacrifice.
• The right to propagate religion allows people to share information about their religion to attract others, but it does not permit forcible conversions through intimidation or inducement.

Equality of All Religions

As a country with many religions, India's government must treat all religions equally. This is a key aspect of secularism.

• India has no official religion.
• No one needs to belong to a particular religion to hold a high public office like President or Prime Minister.
• The state cannot discriminate on the basis of religion in public employment.
• State-run institutions will not preach any religion or give religious education.

Cultural and Educational Rights

India is a society of vast diversity. To protect this diversity, the Constitution grants special rights to minorities.

• Who are minorities? Minorities are groups that have a common language or religion and are outnumbered by another social section in a particular part of the country or in the country as a whole.
• Minorities have the right to conserve and develop their own culture, language, and script.
• All minorities, whether religious or linguistic, have the right to establish and administer their own educational institutions to preserve their culture.
• The government cannot discriminate against any educational institution for being managed by a minority community when granting aid.

Right to Constitutional Remedies

Having a list of rights is not enough; there must be a way to enforce them. The Right to Constitutional Remedies provides this mechanism.

• Dr. B.R. Ambedkar called this right the ‘heart and soul of the constitution’.
• It gives every citizen the right to approach a High Court or the Supreme Court if their fundamental rights are violated.
• The courts can issue special orders, known as writs, to the government to enforce these rights.

The five types of writs are:

1. Habeas corpus: The court can order an arrested person to be presented before it and can order their release if the arrest is unlawful.
2. Mandamus: Issued when a public official is not performing their legal duty, thereby infringing on someone's right.
3. Prohibition: Issued by a higher court to a lower court to stop it from hearing a case that is beyond its jurisdiction.
4. Quo Warranto: Issued to restrain a person from acting in a public office to which they are not entitled.
5. Certiorari: The court orders a lower court or another authority to transfer a pending matter to a higher authority or court.

National Human Rights Commission (NHRC)

Established in 1993, the NHRC is an independent body that helps protect the fundamental and other rights of citizens.

• Composition: It includes a former chief justice of the Supreme Court, a former judge of the Supreme Court, a former chief justice of a High Court, and two other members with experience in human rights.
• Functions: It can investigate complaints of human rights violations, visit jails to study the condition of inmates, and promote research in human rights.
• Limitations: The NHRC does not have the power of prosecution. It can only make recommendations to the government or the courts.

Directive Principles of State Policy

The makers of the Constitution knew that independent India would face challenges in bringing about equality and well-being for all. They included a set of guidelines for future governments to follow when making policies.

• These guidelines are called the Directive Principles of State Policy.
• They are ‘non-justiciable’, meaning they cannot be enforced by the judiciary. If a government doesn't implement a directive, a citizen cannot go to court to force them to do so.
• The idea was that the moral force behind these principles, and public opinion, would push governments to take them seriously.

The Directive Principles contain three main things:

1. Goals and objectives for society: Welfare of the people, social and economic justice, equitable distribution of resources.
2. Certain rights for individuals (beyond Fundamental Rights): Right to an adequate livelihood, equal pay for equal work.
3. Certain policies for the government: A uniform civil code, promotion of cottage industries, and formation of village panchayats.

Over the years, governments have tried to implement these principles through laws like zamindari abolition, nationalisation of banks, and schemes like the employment guarantee programme and the mid-day meal scheme.

Fundamental Duties of Citizens

In 1976, the 42nd Amendment to the Constitution added a list of ten Fundamental Duties for citizens.

• These duties include abiding by the Constitution, defending the country, promoting harmony, and protecting the environment.
• However, the Constitution does not mention any way to enforce these duties.

Relationship between Fundamental Rights and Directive Principles

Fundamental Rights and Directive Principles can be seen as complementary.

• Fundamental Rights mainly restrain the government from doing certain things (negative obligations). They protect individual rights.
• Directive Principles exhort the government to do certain things (positive obligations). They aim for the well-being of the entire society.

However, a conflict can arise when the government tries to implement a Directive Principle that clashes with a Fundamental Right.

The Right to Property Controversy

This conflict was most visible in the case of the Right to Property.

• Originally, the right to acquire, possess, and maintain property was a Fundamental Right.
• When the government tried to pass laws to abolish the zamindari system (a Directive Principle goal for equitable resource distribution), these laws were challenged in court for violating the fundamental right to property.
• This led to a long legal battle between the government (executive/legislature) and the judiciary. The government argued that rights could be limited for social welfare, while the court held that Fundamental Rights were sacred and could not be limited.

Resolution of the Conflict:

1. In 1973, in the Kesavananda Bharati case, the Supreme Court ruled that the Right to Property was not part of the 'basic structure' of the Constitution, and Parliament could amend it.
2. In 1978, the 44th Amendment removed the Right to Property from the list of Fundamental Rights and converted it into a simple legal right under Article 300 A.

This debate also led to the Supreme Court's landmark ruling that while Parliament can amend the Constitution, it cannot change its ‘basic features’.