Chapter Notes

Overview: The Importance of Rights in a Democracy

A democratic government has three major elements. The first two, which we have already studied, are free and fair elections and institutions that follow rules and procedures. However, these are not enough to make a country truly democratic. The third essential element is the enjoyment of rights by citizens.

Democratic rights set limits on the power of the government. Even rulers who are properly elected must learn not to cross certain lines. This chapter explores what it means to live without rights, defines what rights are, and examines the Fundamental Rights guaranteed by the Indian Constitution.

Life without Rights

To understand the value of rights, it is helpful to look at situations where they are absent. The following examples show what life can be like when citizens lack basic protections.

Prison in Guantanamo Bay

After the 11 September 2001 attacks in New York, the US forces secretly captured about 600 people from around the world and imprisoned them in Guantanamo Bay, an area in Cuba controlled by the American Navy.

• The US government claimed they were "enemies of the US" but did not inform or consult the governments of their home countries.
• Prisoners' families, the media, and even UN representatives were not allowed to meet them.
• The US army arrested, interrogated, and decided the fate of these individuals without any trial before a magistrate in the US or their home countries.
• Amnesty International, an international human rights organization, reported that prisoners were being tortured in violation of US laws and international treaties.
• Many prisoners were not released even after being officially declared not guilty.

Citizens' Rights in Saudi Arabia

The case of Saudi Arabia shows how a government can deny rights to its own citizens. The country operates under a system with severe restrictions:

• Hereditary Monarchy: The country is ruled by a king, and citizens have no role in electing or changing their rulers.
• Concentration of Power: The king selects the legislature, the executive, and appoints judges. He can overturn any of their decisions.
• No Political Freedom: Citizens cannot form political parties or organizations. The media cannot report anything the monarch dislikes.
• No Freedom of Religion: All citizens are required to be Muslim. Non-Muslims can practice their religion only in private, not in public.
• Restrictions on Women: Women face many public restrictions, and the testimony of one man is considered equal to that of two women.

Ethnic Massacre in Kosovo

This example shows that even an elected government can be responsible for horrific rights violations. Kosovo was a province of the former Yugoslavia where the population was mostly ethnic Albanian. However, in the country as a whole, Serbs were the majority.

An ethnic group is a community of people who identify with each other based on a shared ancestry, culture, religion, or history.

A narrow-minded Serb nationalist, Slobodan Milosevic, won the election and his government became hostile towards the Kosovo Albanians. He wanted Serbs to dominate the country. This led to a brutal massacre of Albanians by their own country's army, acting under the direction of a democratically elected leader. This was one of the worst instances of killings based on ethnic prejudice in recent times. Eventually, other countries intervened, and Milosevic was tried by the International Court of Justice for crimes against humanity.

Rights in a Democracy

The desire for security, dignity, and fair play is the spirit behind the idea of rights. A system with rights ensures that at least a minimum set of guarantees applies to everyone—powerful or weak, rich or poor, majority or minority.

What are rights?

Rights are best understood as having three essential qualities. They are:

1. Reasonable claims of a person.
2. Recognized by society.
3. Sanctioned by law.

A right is a claim we make on others, on society, and on the government. However, not every claim is a right. A claim must be reasonable and possible for others to have as well. For example, you have a right to express your opinion, but not a right to play a game that breaks your neighbor's window, as that harms others. A right comes with an obligation to respect the rights of others.

For a claim to become a right, it must be recognized by society as legitimate. As societies evolve, so does the idea of rights. Two hundred years ago, the idea of women having the right to vote would have seemed strange to many societies; today, it is a fundamental democratic principle.

Finally, when these socially recognized claims are written into law, they become enforceable. Without legal backing, a right is just a moral claim. The prisoners in Guantanamo Bay had a moral claim not to be tortured, but they could not go to any court to enforce it. When rights are in the law, citizens can approach courts to protect them if they are violated.

Why do we need rights in a democracy?

Rights are absolutely necessary for a democracy to survive and function properly.

• For Democratic Processes: For a democracy to work, citizens must have the right to vote, the right to be elected, the right to express their opinion, and the right to form political parties. Without these, democratic elections cannot take place.
• To Protect Minorities: Rights protect minorities from the oppression of the majority. They ensure that the majority cannot simply do whatever it wants and impose its will on everyone else.
• As Guarantees: Rights are guarantees that can be used when things go wrong. If another citizen or the government tries to take away your rights, you have a legal basis to challenge them.
• To Limit Government Power: Sometimes, even elected governments may attack the rights of their own citizens. To prevent this, some basic rights need to be placed higher than the government, often in a constitution, so that the government cannot violate them.

Rights in the Indian Constitution

The Indian Constitution guarantees six Fundamental Rights that put into effect the promises of equality, liberty, and justice mentioned in the Preamble.

Right to Equality

This is the foundation of any democracy. The Constitution states that the government shall not deny any person equality before the law or the equal protection of the laws. This is known as the rule of law, which means no one is above the law.

Key aspects of the Right to Equality include:

• No Discrimination: The government cannot discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth.
• Access to Public Places: Every citizen has access to public places like shops, hotels, wells, roads, and playgrounds. This was included to combat the historical injustices of the caste system.
• Equality of Opportunity: All citizens have equal opportunity in government employment. The Constitution clarifies that reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes are not a violation of this right. Equality here means giving everyone an equal opportunity to achieve what they are capable of, which sometimes requires giving special treatment to ensure a level playing field.
• Abolition of Untouchability: The Constitution forbids the practice of untouchability in any form and has made it a punishable offense. Untouchability refers to any belief or social practice that looks down upon people because of their birth into a particular caste.

Right to Freedom

Freedom means the absence of constraints or interference in our affairs. The Indian Constitution guarantees all citizens six key freedoms:

1. Freedom of speech and expression.
2. Assembly in a peaceful manner.
3. Form associations and unions.
4. Move freely throughout the country.
5. Reside in any part of the country.
6. Practice any profession, or carry on any occupation, trade, or business.

Limitations on Freedom: Freedom is not an unlimited license to do whatever one wants. You cannot exercise your freedom in a way that violates others' rights or causes public disorder. The government can impose reasonable restrictions on these freedoms in the larger interests of society.

The Right to Freedom also includes the protection of life and personal liberty. This means:

• No person can be deprived of their life or personal liberty except according to the procedure established by law.
• A person who is arrested must be informed of the reasons for the arrest.
• An arrested person must be brought before the nearest magistrate within 24 hours.
• An arrested person has the right to consult a lawyer.

Right against Exploitation

To protect the weaker sections of society, the Constitution clearly prohibits three specific evils:

1. Traffic in human beings: This refers to the selling and buying of human beings, usually women, for immoral purposes.
2. Forced labour or begar: This is a practice where a worker is forced to provide service to a 'master' for free or for very little pay. When this happens on a lifelong basis, it is called bonded labour.
3. Child labour: No one can employ a child below the age of 14 to work in a factory, mine, or any other hazardous job.

Right to Freedom of Religion

India is a secular state, meaning it does not establish any one religion as the official religion. The state remains neutral and impartial towards all religions.

This right guarantees that:

• Every person has the right to profess, practice, and propagate the religion they believe in.
• Religious groups are free to manage their own religious affairs.
• Freedom to practice religion has limits. One cannot perform harmful acts like human sacrifice in the name of religion. Practices that treat women as inferior are also not allowed.
• The government cannot compel anyone to pay taxes for the promotion of a particular religion.
• There can be no religious instruction in government educational institutions.

Cultural and Educational Rights

In a democracy, the majority holds power, which can sometimes lead to the neglect of the culture, language, and religion of minority groups. To prevent this, the Constitution provides special protection for minorities.

• Any section of citizens with a distinct language or culture has the right to conserve it.
• Admission to any government-aided educational institution cannot be denied based on religion or language.
• All minorities have the right to establish and administer educational institutions of their choice.

How can we secure these rights?

Guarantees are useless if there is no one to enforce them. The Right to Constitutional Remedies is the right that makes all other Fundamental Rights effective. Dr. Ambedkar called it 'the heart and soul' of our Constitution.

• Enforcement through Courts: If any of our Fundamental Rights are violated by fellow citizens, private bodies, or the government, we can seek a remedy through the courts. We can directly approach a High Court or the Supreme Court.
• Writs: The Supreme Court and High Courts have the power to issue directions, orders, or writs to enforce these rights. A writ is a formal document containing an order from a court to the government.
• Public Interest Litigation (PIL): Now, any person or group can approach a court on behalf of those whose rights are being violated, if it is a matter of public interest. One can even write to the judges on a postcard, and the court may take up the matter.
• National Human Rights Commission (NHRC): The NHRC is an independent commission established in 1993. It investigates cases of human rights violations but cannot punish the guilty itself. It makes inquiries and presents its findings and recommendations to the government or courts to help victims secure their rights.

Expanding Scope of Rights

The rights citizens enjoy are not limited to the six Fundamental Rights. Over time, the scope of rights has expanded.

• Derived Rights: Courts have interpreted the Fundamental Rights to include other rights. For example, the Right to Freedom of Speech and Expression has been interpreted to include the right to information and the right to freedom of the press. The Right to Life has been expanded to include the right to food and the right to education. School education for all children up to the age of 14 is now a legal right.
• Other Constitutional Rights: The Constitution provides other rights that are not Fundamental Rights, such as the right to property and the right to vote.
• Human Rights and International Covenants: The idea of rights is also expanding globally. Human rights are universal moral claims that may or may not be legally recognized. International agreements, or covenants, also contribute to this expansion by setting standards for governments to follow. A covenant is a legally binding promise made by countries to uphold a principle.