Chapter 2 Rights In The Indian Constitution

Introduction

Beyond detailing the structure and interactions of government bodies, a constitution serves as a document that limits state power and facilitates a democratic system where individuals possess certain rights. This chapter focuses on the Fundamental Rights enshrined in the Indian Constitution.

Part III of the Indian Constitution contains the list of these Fundamental Rights and also outlines the restrictions that can be placed upon them. Over the past sixty years since the Constitution's adoption, the interpretation and scope of these rights have evolved and expanded.

By studying this chapter, you will learn about:

• The specific Fundamental Rights listed in the Indian Constitution.
• Mechanisms for protecting these rights.
• The role of the judiciary in upholding and interpreting rights.
• The distinction between Fundamental Rights and Directive Principles of State Policy.

The Importance Of Rights

Real-life examples underscore the critical importance of having rights and ensuring their practical implementation. Consider the case of construction workers engaged for the 1982 Asian Games. Despite being employed, they were subjected to poor working conditions and paid less than the legally mandated minimum wage. Social scientists highlighted this violation, arguing in the Supreme Court that paying less than minimum wage constituted 'begar' (forced labour), which is prohibited under the Fundamental Right against exploitation. The Court agreed and ordered the government to ensure workers received their rightful wages.

Another poignant example is Machal Lalung, arrested at 23 and charged with causing injuries. Found mentally unstable for trial, he was sent for treatment. Despite doctors deeming him fit for trial years later, he remained in custody without a hearing for 54 years, eventually released at age 77 after the National Human Rights Commission intervened. His case tragically illustrates the denial of the right to life and personal liberty, which includes the right to a fair and speedy trial, highlighting the consequences when constitutional rights are not upheld in practice.

Bill Of Rights

These instances demonstrate why having rights is essential and why their enforcement matters. A democracy must guarantee certain rights to its citizens and ensure the government respects them. Consequently, most democratic constitutions include a specific list of citizens' rights, known as a 'bill of rights'.

A bill of rights primarily serves to prohibit the government from infringing upon individual rights and provides a means of redress if rights are violated.

Rights can be threatened by other individuals, private organisations, or even governmental bodies (legislature, executive, bureaucracy, or judiciary) during their functions. Therefore, a bill of rights is necessary to bind the government to protect citizens' rights not only from private entities but also from potential violations by the state itself.

(The analogy of a bill of rights as a warranty card suggests it's a guarantee or protection for the individual's fundamental entitlements against malfunction or violation, particularly by the authority of the state.)

Bill of Rights in the South African Constitution

Adopted in 1996 following the end of Apartheid, the South African Constitution's Bill of Rights is considered a cornerstone of its democracy. It is notable for its comprehensive scope, explicitly prohibiting discrimination on numerous grounds including race, gender, religion, disability, etc.

It grants a wide array of rights, some of which are explicitly stated and extensive:

• Right to Dignity
• Right to Privacy
• Right to Fair Labour Practices
• Right to a Healthy Environment and its Protection
• Right to Adequate Housing
• Right to Health Care, Food, Water, and Social Security
• Children’s Rights
• Right to Basic and Higher Education
• Rights of Cultural, Religious, and Linguistic Communities
• Right to Information

A special constitutional court is tasked with enforcing these rights.

Fundamental Rights In The Indian Constitution

During India's struggle for independence, nationalist leaders recognised the vital importance of rights and demanded that the British colonial government respect the rights of the Indian people. As early as 1928, the Motilal Nehru committee called for a bill of rights. Therefore, when India became independent and its Constitution was being drafted, including and protecting rights was a unanimous decision.

The Constitution explicitly listed certain rights and designated them as Fundamental Rights. The term 'fundamental' signifies their supreme importance; they are specifically enumerated and granted special protection within the Constitution itself, ensuring they are not easily violated by the government.

Fundamental Rights differ from ordinary legal rights:

• Ordinary legal rights are protected and enforced through regular laws made by the legislature.
• Fundamental Rights are protected and guaranteed by the Constitution.

While ordinary rights can be changed by the legislature through standard law-making processes, Fundamental Rights can only be altered by amending the Constitution itself. Crucially, no governmental body (Executive or Legislature) can act in a way that violates Fundamental Rights. The judiciary is empowered and responsible for protecting these rights and can declare executive or legislative actions illegal if they infringe upon Fundamental Rights or restrict them unreasonably.

However, Fundamental Rights are not absolute or unlimited. The government is allowed to impose reasonable restrictions on their exercise for the sake of public order, morality, security, etc.

Right To Equality

The Right to Equality is fundamental in a democratic society aiming to eliminate discrimination based on factors like religion, race, caste, sex, or place of birth. It ensures equal access to public spaces such as shops, hotels, places of entertainment, wells, bathing ghats, and roads. This is particularly significant given India's historical context of unequal access.

Key provisions under the Right to Equality:

• Equality before Law: This means everyone is subject to the same laws, and the state must provide equal protection of laws to all.
• Prohibition of Discrimination: The state cannot discriminate against any citizen based solely on their religion, race, caste, sex, or place of birth.
• Equality of Opportunity in Public Employment: Ensures fair and equal chances for all citizens in jobs offered by the state.
• Abolition of Untouchability: Declares the practice of untouchability illegal and punishable, addressing a historical form of extreme inequality.
• Abolition of Titles: Prohibits the state from conferring titles, except for military or academic honours, promoting a sense of equal status.

The Preamble of the Constitution outlines two aspects of equality: equality of status and equality of opportunity. Equality of opportunity aims for all societal sections to have equal chances. Given existing social inequalities, achieving this requires proactive measures. The Constitution recognises this by allowing the government to implement special schemes and reservations for children, women, and socially and educationally backward classes to improve their conditions and ensure equal opportunity. Article 16(4) explicitly states that reservations are not a violation of the right to equality but a means to fulfil it.

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Right To Freedom

Along with equality, freedom (or liberty) is a cornerstone of democracy. Liberty encompasses freedom of thought, expression, and action. However, this freedom is not absolute; it doesn't grant the right to do anything one desires, as this could infringe upon the freedom of others or disrupt public order. Therefore, freedoms are defined with limitations to ensure everyone can enjoy their liberty without harming others or endangering law and order.

Right To Life And Personal Liberty

The most fundamental freedom is the Right to Life and Personal Liberty (Article 21). This means:

• No person can be deprived of their life or personal liberty except according to the procedure established by law.
• An arrested person must be informed of the grounds for arrest.
• An arrested person has the right to be defended by a lawyer of their choice.
• An arrested person must be produced before the nearest magistrate within 24 hours (excluding travel time). The magistrate, independent of the police, determines if the arrest is justified.

The scope of this right has been significantly expanded by Supreme Court judgments. It now includes the right to live with human dignity, freedom from exploitation, and even the right to shelter and livelihood, as these are considered essential for life itself.

Preventive Detention

An exception to the standard arrest procedure is preventive detention. This allows the government to arrest and imprison a person based on the *apprehension* that they are likely to engage in unlawful activity or pose a threat to law and order or national security, without a prior offence or trial following the usual procedure. Such detention can initially last up to three months, after which it requires review by an advisory board.

While intended as a tool against anti-social elements, this provision is often criticised for potential misuse against individuals for reasons other than genuine threats. There is an inherent tension between the fundamental Right to Life and Personal Liberty and the provision for preventive detention, leading to calls for stronger safeguards against its misuse.

Other Freedoms

The Right to Freedom also encompasses other specific freedoms, though these are subject to reasonable restrictions imposed by the government:

• Freedom of Speech and Expression (Article 19(1)(a)): Subject to restrictions like public order, morality, defamation, incitement to an offence, etc.
• Freedom to Assemble Peacefully and Without Arms (Article 19(1)(b)): Assemblies can be restricted to maintain public order.
• Freedom to Form Associations or Unions (Article 19(1)(c)).
• Freedom to Move Freely Throughout the Territory of India (Article 19(1)(d)).
• Freedom to Reside and Settle in Any Part of India (Article 19(1)(e)).
• Freedom to Practice Any Profession or Carry On Any Occupation, Trade or Business (Article 19(1)(g)): Subject to professional qualifications or public interest.

Restrictions can be imposed by declaring certain areas unlawful for large gatherings (e.g., prohibiting assembly of five or more persons). Concerns exist that such powers can be misused to suppress legitimate protest. However, an informed and vigilant citizenry can help prevent such misuse.

Rights Of Accused

The Constitution provides significant protection to individuals accused of offences, based on the principle that a person is presumed innocent until proven guilty in court and must have adequate opportunity to defend themselves. To ensure a fair trial, the Constitution guarantees three specific rights for the accused (Article 20):

• No person shall be punished for the same offence more than once (Protection against double jeopardy).
• No law shall make an action illegal retrospectively (Ex post facto laws are prohibited; a person can only be convicted for an act that was illegal *at the time it was committed*).
• No person shall be compelled to be a witness against himself or herself (Protection against self-incrimination).

Right Against Exploitation

India's population includes millions who are underprivileged and vulnerable to exploitation by others. The Constitution specifically addresses this by prohibiting two forms of exploitation:

1. Prohibition of Traffic in Human Beings and Forced Labour (Article 23): This outlaws buying and selling of humans (slavery) and 'begar' or forced labour without payment. Historically, forced labour was imposed by dominant classes like landlords. While legally prohibited and punishable, some forms of bonded labour regrettably still exist, such as in brick kilns.
2. Prohibition of Employment of Children in Hazardous Jobs (Article 24): This forbids employing children below the age of 14 in dangerous occupations like factories and mines. With child labour being illegalised and education becoming a Fundamental Right for children (Article 21A), this right against exploitation has become more effective in protecting vulnerable children.

(This photograph likely shows child labour or forced labour, which would be a violation of the Right Against Exploitation.)

Right To Freedom Of Religion

The Constitution guarantees every individual the Right to Freedom of Religion, considered a fundamental feature of democracy, especially in diverse societies. Historically, many rulers persecuted or forced conversion upon those who did not follow the state religion. Democracy, conversely, embraces religious freedom as a core principle.

Freedom Of Faith And Worship

In India, every person is free to choose and practice any religion or choose not to follow any religion (freedom of conscience). This freedom includes the right to profess, practice, and propagate one's religion.

However, the freedom of religion is subject to certain limitations. The government can impose restrictions to protect public order, morality, and health. This means religious freedom is not absolute. The state can intervene in religious matters to eradicate social evils, such as banning practices like Sati, bigamy, or human sacrifice, and these restrictions cannot be opposed by claiming religious freedom.

The right to propagate one's religion includes the right to persuade others to convert. However, the Constitution prohibits forcible conversions based on intimidation or undue inducement. Propagation means spreading information about one's religion to attract others, not compelling them.

Equality Of All Religions

Given India's religious diversity, the government must treat all religions equally. This implies that the state does not favour or establish any particular religion. India has no official state religion. One's religious affiliation is not a requirement or barrier for holding any public office, including Prime Minister, President, or judge. The Right to Equality also guarantees non-discrimination based on religion in state employment.

Furthermore, state-run educational institutions cannot promote any specific religion or provide religious instruction. These provisions aim to uphold the principle of secularism, ensuring the state remains neutral towards all religions and treats them equally.

Cultural And Educational Rights

Recognising India's vast diversity, the Constitution includes Cultural and Educational Rights to protect minority groups and enable them to preserve their distinct identities. Diversity is seen as a strength.

Minority status is not limited to religious groups; it also includes linguistic and cultural minorities. Minorities are communities that are outnumbered by other social groups in a specific area or the country as a whole and share a common language, culture, or script.

Key provisions of these rights:

• Protection of Culture: Minority communities have the right to conserve and develop their own language, script, and culture.
• Right to Establish Educational Institutions: Religious and linguistic minorities can establish and manage their own educational institutions. This allows them to impart education in their language and preserve their cultural heritage.

The state is prohibited from discriminating against any educational institution when granting aid simply because it is managed by a minority community. This ensures that minority institutions can function effectively and contribute to preserving cultural diversity.

(Sardar Hukam Singh's quote emphasises the responsibility of the majority community to ensure minorities feel secure in a secular state and highlights that minority demands for safeguards often stem from fears regarding their language, script, and rights in public life.)

(The thought bubble "Aren’t we all minorities?" humorously points out that depending on the criteria used (locality, language, religion, etc.), individuals can be part of various minority or majority groups, underscoring the complex and multi-layered nature of identity in a diverse society.)

Right To Constitutional Remedies

Listing Fundamental Rights in the Constitution is a crucial first step, but they must be enforceable and protected against violation. The Right to Constitutional Remedies (Article 32) provides the mechanism for this enforcement. Dr. B.R. Ambedkar famously described it as the "heart and soul of the constitution" because it empowers citizens to approach the High Courts or the Supreme Court directly if their Fundamental Rights are violated, seeking their restoration.

The Supreme Court and High Courts have the power to issue specific orders or directives to the government for enforcing Fundamental Rights. These special orders are known as writs:

• Habeas Corpus: The court orders the production of an arrested person before it. It is used to check if the arrest and detention are lawful. If not, the person can be ordered to be set free.
• Mandamus: This writ is an order from a higher court to a public official or lower court, commanding them to perform a specific legal duty that they have failed or refused to do, and which is necessary to protect someone's rights.
• Prohibition: Issued by a higher court to a lower court or tribunal to stop it from exceeding its jurisdiction or acting against the rules of natural justice in a case.
• Quo Warranto: The court can inquire into the legality of a person's claim to a public office. If the person is found not entitled to hold the office, the court can prevent them from continuing in that role.
• Certiorari: Issued by a higher court to a lower court or tribunal to quash (cancel) a decision or order made by the lower body or to transfer a case from the lower body to the higher court for review, usually done when the lower court has made a mistake of law or exceeded its jurisdiction.

In addition to the judiciary, other bodies have been established to protect rights, such as the National Commission on Minorities, National Commission on Women, and National Commission on Scheduled Castes. The National Human Rights Commission is another statutory body dedicated to protecting human rights, including fundamental rights.

National Human Rights Commission (Nhrc)

The true effectiveness of constitutional rights lies in their practical implementation, particularly for vulnerable sections of society like the poor, illiterate, and deprived. Independent civil liberties organisations (like PUCL, PUDR) have played a significant role as watchdogs against rights violations. Responding to this need, the government established the National Human Rights Commission (NHRC) in 1993.

The NHRC is typically composed of a former Chief Justice of India, a former Supreme Court judge, a former High Court Chief Justice, and other members with relevant knowledge and experience in human rights.

Its functions include:

• Investigating complaints of human rights violations, either on its own initiative or based on petitions from victims.
• Visiting jails and institutions to study inmate conditions.
• Promoting and undertaking research in human rights.

The NHRC receives thousands of complaints annually, covering issues like custodial deaths, rape, disappearances, police misconduct, and indignity towards women. Its interventions in cases like disappeared youth in Punjab and the Gujarat riot investigations have been notable and effective.

However, the NHRC is primarily a recommendatory body. It cannot directly prosecute offenders but makes recommendations to the government or suggests that courts initiate proceedings based on its inquiries.

Directive Principles Of State Policy

The framers of the Constitution anticipated that independent India would face significant challenges, especially in achieving equality and well-being for all citizens. They believed that certain policy directions were needed to tackle these problems. However, they also wanted to allow future governments flexibility rather than binding them to specific rigid policies. Therefore, they included guidelines in the Constitution that are not legally enforceable by courts – meaning you cannot sue the government for failing to implement them. These are known as 'non-justiciable' principles.

The framers hoped that the moral authority of these guidelines and public pressure would encourage governments to take them seriously. This separate list of policy guidelines is called the Directive Principles of State Policy (DPSP), contained in Part IV of the Constitution.

What Do The Directive Principles Contain?

The DPSP essentially outlines three main categories of principles:

• Goals and Objectives: The ideals that society as a whole should strive for, such as welfare of the people, social, economic, and political justice, raising living standards, equitable distribution of resources, and promotion of international peace.
• Non-Justiciable Rights: Certain rights that individuals ideally should enjoy but are not legally enforceable as Fundamental Rights. Examples include the right to adequate livelihood, equal pay for equal work, right against economic exploitation, right to work, and provision for early childhood care and education for young children.
• Certain Policies: Specific policy directions that the government should adopt, such as implementing a Uniform Civil Code, prohibiting the consumption of alcoholic liquor, promoting cottage industries, preventing the slaughter of useful cattle, and promoting village panchayats.

Governments over time have attempted to implement many DPSP through legislation and policies. Examples include abolishing the zamindari system, nationalising banks, enacting factory laws and minimum wage regulations, promoting small industries, introducing reservations, implementing the right to education, establishing Panchayati Raj institutions, and initiating employment guarantee schemes and mid-day meals.

(The question "Tell me what is the point of saying nice things in the Constitution if these cannot be implemented by any court?" reflects the nature of DPSPs as aspirational goals rather than immediately enforceable rights, posing a challenge regarding their practical impact.)

Fundamental Duties Of Citizens

In 1976, the Constitution was amended (42nd Amendment) to include a list of Fundamental Duties for citizens. Ten duties were initially listed, and another was added later. These duties are not legally enforceable in the same way as Fundamental Rights.

Examples of Fundamental Duties include abiding by the Constitution, defending the country, promoting harmony, and protecting the environment.

However, the Constitution does not make the enjoyment of Fundamental Rights conditional upon fulfilling these duties. The inclusion of Fundamental Duties does not diminish the status or enforceability of Fundamental Rights.

Relationship Between Fundamental Rights And Directive Principles

Fundamental Rights and Directive Principles can be seen as complementary aspects of the Constitution. Fundamental Rights impose limitations on the government (prohibiting certain actions), while Directive Principles provide guidance and encourage the government to take positive steps towards societal goals. Fundamental Rights primarily focus on protecting individual liberties, while Directive Principles aim for the well-being of the entire society.

However, conflicts can arise when the government tries to implement a DPSP and it potentially infringes upon a Fundamental Right. A historical instance of this conflict occurred when the government passed laws to abolish the zamindari system, which were challenged as violating the Right to Property.

This led to a significant legal and political debate. The government argued that rights could be curtailed to implement DPSPs, viewing rights as potential obstacles to welfare. The judiciary, conversely, initially held that Fundamental Rights were paramount and could not be limited, even for implementing DPSPs.

This complex debate eventually led to the landmark Supreme Court decision in the Kesavananda Bharati case (1973), which established the doctrine of the Basic Structure of the Constitution. The Court ruled that while Parliament can amend the Constitution, it cannot alter its basic features. This decision provided a framework for resolving conflicts, suggesting that while DPSPs are important, they cannot override the essential principles and fundamental framework of the Constitution.

Right To Property

The Right to Property was originally included as a Fundamental Right, granting citizens the right to acquire, possess, and maintain property. However, the Constitution also allowed the government to take away property for public welfare. This right became a central point of conflict between Fundamental Rights and Directive Principles, particularly during land reforms aimed at reducing inequality (a DPSP).

Over time, numerous laws were passed that limited the Right to Property. The Supreme Court's decision in the Kesavananda Bharati case in 1973 stated that the Right to Property was *not* part of the basic structure, giving Parliament the power to amend it.

Finally, in 1978, the 44th Amendment removed the Right to Property from the list of Fundamental Rights and reclassified it as a simple legal right under Article 300A. This change means that while the state cannot arbitrarily deprive a person of property, the right is now regulated by ordinary law rather than having the higher status and protection of a Fundamental Right, making it easier for the government to acquire private property for public purposes with due compensation as per law.

Conclusion

The idea that rights encompass both freedom and equality has historical roots in India, seen in the work of reformers like Jotirao Phuley. This concept evolved during the national movement and was enshrined as constitutional rights in independent India's Constitution.

Since 1950, the Indian judiciary has played a crucial role in protecting and interpreting these rights, often expanding their scope through its judgments. The government and administration operate within the framework defined by these rights, which serve as limitations on state power and safeguards for democratic governance.

Comparing South African Bill of Rights and Indian Directive Principles

Comparing the detailed list of rights in the South African Bill of Rights with the aspirations in the Indian Directive Principles reveals several common themes, particularly regarding socio-economic well-being:

• Common points: Both address rights related to health care, food, water, social security, adequate housing, and education. The South African Bill explicitly lists these as enforceable rights, while the Indian DPSPs list them as directives for the state to work towards.
• Why South Africa put them in the Bill of Rights: South Africa's Constitution was drafted more recently (1996) with the specific context of overcoming the deep socio-economic inequalities created by Apartheid. Making socio-economic rights enforceable fundamental rights was seen as essential for achieving substantive equality and transforming society after systematic deprivation.
• Constitutional suggestion for a new country: If writing a constitution for a new country, I would advocate for including socio-economic rights with a degree of enforceability. Perhaps not immediately as strictly justiciable as civil/political rights, but with clear state obligations and mechanisms for phased implementation and judicial oversight to ensure progress towards achieving these rights. A hybrid approach, acknowledging these as fundamental human entitlements that the state is obligated to work towards, with some level of accountability, might be suitable, drawing lessons from both the aspirational nature of Indian DPSPs and the enforceable nature of South African socio-economic rights.

Exercises

As per instructions, the content of the exercises is not included, only the section heading structure is provided.