Chapter 5 Democratic Rights

Previous chapters covered two core aspects of democratic government: periodic free and fair elections (Chapter 3) and functioning through institutions with set rules and procedures (Chapter 4). However, these elements alone are insufficient for a democracy. A third essential element is the enjoyment of rights by citizens. Even properly elected rulers operating within institutions must recognise and respect certain limits, and these limits are defined by citizens' democratic rights.

This final chapter delves into democratic rights. It begins with real-life examples to illustrate the consequences of living without rights. This leads to a discussion on the meaning and necessity of rights. Following this general exploration, the chapter focuses on India, examining the Fundamental Rights enshrined in the Indian Constitution, how citizens can utilise them, and the mechanisms for their protection and enforcement. Finally, it considers how the scope of rights has evolved and expanded over time.

*(Before starting this chapter, it is helpful to recall how rights were mentioned in earlier chapters: Chapter 1 discussed rights as part of a comprehensive definition of democracy; Chapter 2 noted that fundamental rights were central to the Constitution makers' vision; Chapter 3 mentioned the right to vote and be elected for adult citizens; and Chapter 4 discussed the right to approach courts if a law is against the Constitution.)*

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Life Without Rights

Examining situations where rights are absent helps illustrate their importance. Three real-life examples are presented:

• Prison in Guantanamo Bay: Following the 9/11 attacks, approximately 600 people were secretly detained by US forces worldwide and imprisoned in Guantanamo Bay, a US-controlled area in Cuba. They were labelled 'enemies of the US' and linked to terrorism. Their governments were often not informed. Families, media, and even UN representatives were denied access. The US military handled arrests, interrogations, and decisions on continued detention without trials in US courts, and prisoners could not access courts in their home countries. Amnesty International and the UN reported torture and conditions violating international norms for prisoners of war. Some prisoners were not released even after being declared not guilty. The US government disregarded pleas to close the prison. This highlights the denial of basic legal rights and protection against torture/inhuman treatment.
• Citizens’ Rights in Saudi Arabia: This example illustrates the lack of rights under an absolute monarchy. Saudi Arabia is ruled by a hereditary king with no role for the people in electing or changing rulers. The king controls the legislature, executive, and judiciary, appointing judges and overriding decisions. Citizens cannot form political parties or organisations. Media freedom is restricted; reporting anything the monarch dislikes is forbidden. There is no freedom of religion; citizens must be Muslim, while non-Muslim residents can only practice their faith privately. Women face severe public restrictions, and their testimony in court holds less weight than a man's. This demonstrates the absence of political rights, freedom of association, freedom of speech/press, freedom of religion, and equality based on gender.
• Ethnic Massacre in Kosovo: This case, from the Serbian province of Kosovo within Yugoslavia before its breakup, shows how denial of rights can occur even when rulers are elected. The majority population in Kosovo was ethnic Albanian, but Serbs were the majority in the country. The elected Serb nationalist leader, Milosevic, pursued hostile policies towards Kosovo Albanians, aiming for Serb dominance. This led to a brutal massacre of thousands of Albanians by the Serbian army in 1999. Families were killed, property destroyed, and people forced to flee. This exemplifies the denial of the right to life, protection from violence, and freedom from discrimination based on ethnicity, carried out by the state itself, even under an elected leader.

These examples illustrate the horrors and indignities faced when individuals and groups are denied basic rights and protections, regardless of the form of government (military detention, absolute monarchy, or elected ethnic nationalist rule). They underscore the desire for systems guaranteeing security, dignity, and fairness, where arbitrary arrest, lack of defense, and violence based on identity are prevented. This leads to the concept of needing a minimum set of guaranteed entitlements for everyone, enforceable by law, that cannot be violated even by the government.

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Rights In A Democracy

Drawing from the examples of life without rights, the concept of rights emerges as essential for security, dignity, and fair treatment. People desire a system that guarantees these aspects, where, for example, proper legal procedures are followed before arrest and individuals have the right to a fair defense.

What are rights?

Rights are defined as reasonable claims of a person over other fellow beings, over the society, and over the government. These claims stem from the desire to live happily, without fear, and free from degrading treatment. They imply expectations that others will act in ways that do not harm us, coupled with the obligation that our actions do not harm others. A claim becomes a right if it is equally possible for everyone to have that claim and it does not infringe upon the rights of others (e.g., the Serbs' claim to dominate Kosovo was not a right). Rights come with an obligation to respect the rights of others.

Furthermore, a claim becomes a right only when it is recognised by the society. Social recognition dictates what is considered 'rightful' conduct. The understanding of rights is dynamic, changing over time and across societies (e.g., the historical shift in recognising women's right to vote). When these socially recognised claims are formally written into law, they gain real force and become enforceable. Without legal recognition, claims remain merely natural or moral rights, difficult to enforce (like the prisoners in Guantanamo Bay). Legally sanctioned rights allow individuals to demand their application and seek court protection if violated by others or the government.

Thus, a claim must possess three qualities to be considered a right: it must be reasonable, recognised by society, and sanctioned by law.

Why do we need rights in a democracy?

Rights are indispensable for the very existence and functioning of a democracy. They are necessary for democratic processes like elections (right to vote and be elected) and political participation (right to express opinions, form parties, engage in political activities).

Additionally, rights play a crucial role in protecting minorities from the tyranny of the majority. They act as guarantees that can be invoked when individuals' or groups' rights are violated, often by those in the majority attempting to dominate minorities. While the government is supposed to protect citizens' rights, elected governments themselves can sometimes fail to protect or even attack citizens' rights (e.g., Milosevic's actions in Kosovo). Therefore, it is essential that some rights are placed above the government's power, making them inviolable. In most democracies, these fundamental rights are embedded in the constitution.

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Rights In The Indian Constitution

Similar to other democracies, India lists fundamental rights in its Constitution, giving them a special status as Fundamental Rights. The Preamble's promise of securing justice, liberty, and equality for all citizens is put into effect through these rights, making them a core feature of the Indian Constitution.

India's Constitution guarantees six Fundamental Rights:

1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights
6. Right to Constitutional Remedies

Let's explore the meaning of each for ordinary citizens.

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Right To Equality

This right ensures that the government cannot deny any person in India equality before the law or the equal protection of the laws. This principle, the rule of law, is the foundation of democracy: laws apply equally to everyone, regardless of status, including political leaders, officials, and ordinary citizens. No one can claim special treatment or privilege.

The Constitution elaborates on the implications of this right:

• Non-discrimination: The government cannot discriminate against citizens based solely on religion, race, caste, sex, or place of birth.
• Access to Public Places: All citizens have equal access to public spaces like shops, restaurants, hotels, cinema halls, wells, tanks, bathing ghats, roads, playgrounds, and public resorts maintained by the government or dedicated to public use. This was crucial in India's context to address historical caste-based restrictions.
• Equality of Opportunity in Public Employment: All citizens have equal opportunity in government jobs. Discrimination or ineligibility based on the grounds mentioned above is prohibited.

The concept of equality here does not mean identical treatment for everyone. It means providing everyone an equal opportunity to achieve their potential. This sometimes necessitates providing special treatment, such as reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes, or schemes favouring women, the poor, or the disabled. The Constitution explicitly states that these measures are not violations of the Right to Equality because they aim to ensure equal opportunity for historically disadvantaged groups.

The principle of non-discrimination also extends to social practices. The Constitution specifically targets the extreme social evil of untouchability, declaring its practice in any form illegal and a punishable offense. Untouchability goes beyond physical touch, encompassing any belief or social practice that demeans people based on caste labels and denies them equal interaction or access to public spaces. *(Examples from P. Sainath's reports illustrate various forms of untouchability still practiced in some areas.)*

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Right To Freedom

Freedom means being free from constraints or interference in one's affairs by others or the government. While living in society, individuals desire freedom in their actions. The Indian Constitution grants all citizens several freedoms:

• Freedom of speech and expression
• Freedom to assemble peacefully without arms
• Freedom to form associations and 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. Citizens must exercise their freedoms without violating the rights of others or causing public nuisance or disorder. The government can impose reasonable restrictions in the larger interests of society.

• Freedom of speech and expression: Essential for democracy and personal development, allowing individuals to think and express views differently, even disagreeing with the government or organisations through various means (pamphlets, media, art). However, this freedom cannot be used to incite violence, rebellion, or defame others.
• Freedom of assembly: Allows citizens to hold peaceful meetings, processions, rallies, and demonstrations to discuss issues, mobilise support, or campaign. Participants must be unarmed and not cause public disorder.
• Freedom to form associations/unions: Enables groups to come together for common interests (e.g., workers' unions, anti-corruption groups).
• Freedom of movement and residence: Citizens can travel freely throughout India and reside/settle in any part of the country, facilitating migration for work or other purposes.
• Freedom of occupation: Ensures individuals can choose any profession, occupation, trade, or business, preventing discrimination based on gender or caste.

The Constitution also protects life and personal liberty, stating no person can be deprived of them except according to law. This implies that arbitrary killing or detention by government/police is illegal. Specific procedures must be followed upon arrest:

• Reasons for arrest and detention must be informed.
• The arrested person must be produced before the nearest magistrate within 24 hours.
• The person has the right to consult and be defended by a lawyer.

*(The cases of Guantanamo Bay and Kosovo represent gross violations of the fundamental liberty and protection of life and personal liberty.)*

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Right Against Exploitation

Building on the rights to liberty and equality, the Constitution includes explicit provisions against exploitation, particularly targeting weaker sections. Three specific evils are declared illegal:

1. Traffic in human beings: Prohibits the selling and buying of people, typically women, for immoral purposes.
2. Forced labour or Begar: Prohibits compelling individuals to work for free or for nominal payment. Bonded labour, where this practice is lifelong, is also forbidden.
3. Child labour: Prohibits the employment of children under 14 in factories, mines, or other hazardous work (like railways, ports). This has led to laws banning child labour in industries like beedi making, firecrackers, printing, and dyeing.

*(News reports on child auctions, children in iron ore mines, and increasing female child labourers highlight ongoing violations of this right.)*

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Right To Freedom Of Religion

Freedom of religion is part of the Right to Freedom. India is a secular state, meaning it does not establish any one religion as the official religion. Indian secularism maintains a principle of equal distance from all religions, with the state being neutral and impartial. Every person has the right to profess, practice, and propagate their religion and manage their religious affairs.

However, the right to propagate religion does not permit forcing conversion through force, fraud, or inducement. While voluntary change of religion is allowed, religious freedom does not justify practices that harm others (e.g., animal/human sacrifice) or violate fundamental rights, particularly women's freedom (e.g., forced widow practices). A secular state does not favour or discriminate against any religion. It cannot compel citizens to pay taxes for the promotion of any specific religion or religious institution. Religious instruction is prohibited in government educational institutions, and participation in religious instruction/worship is not compulsory in privately managed institutions receiving government aid.

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Cultural And Educational Rights

Recognising that democracy empowers the majority, the Constitution provides special protections for the language, culture, and religion of minorities, ensuring they are not neglected or undermined. Minorities are defined not just by religion nationally, but also by language regionally.

The cultural and educational rights for minorities include:

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

*(Examples of minority groups based on language at the state level include Telugu speakers in Karnataka or Sikhs in Rajasthan.)*

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Right To Constitutional Remedies

Rights are only meaningful if they are enforceable. The Fundamental Rights in the Indian Constitution are enforceable, and citizens have the Right to seek their enforcement. This is itself a Fundamental Right, making other rights effective. If Fundamental Rights are violated by fellow citizens, private bodies, or the government, individuals can seek remedy through the courts.

For violations of Fundamental Rights, citizens can directly approach the Supreme Court or the state's High Court. Dr. B.R. Ambedkar considered this right the 'heart and soul' of the Constitution.

Fundamental Rights are protected against actions by the Legislature, Executive, and other government authorities. Any law or action violating Fundamental Rights is invalid and can be challenged in courts. Courts can enforce these rights even against private individuals and bodies.

The Supreme Court and High Courts can issue directions, orders, or writs to enforce Fundamental Rights, and can award compensation to victims and punish violators. As discussed in Chapter 4, the judiciary is independent of the government and Parliament and is powerful enough to protect citizens' rights.

Traditionally, only the aggrieved person could go to court. However, now, any person can approach the court on behalf of others if the violation is of social or public interest. This is known as Public Interest Litigation (PIL). Under PIL, any citizen or group can approach the Supreme Court or a High Court to protect public interest against a law or government action, even writing to judges on a postcard. The court will take up the matter if deemed to be in the public interest.

The National Human Rights Commission (NHRC), an independent commission set up by law in 1993, also plays a role. Appointed by the President and including retired judges and eminent citizens, NHRC investigates human rights violations by government officials or negligence in controlling them. It can make independent inquiries, summon witnesses, question officials, demand documents, and visit prisons. NHRC presents findings and recommendations to the government or intervenes in court on behalf of victims. While it cannot punish the guilty (that is the court's role), it helps victims secure human rights, including those under the Constitution and UN treaties signed by India. State Human Rights Commissions exist in all states. Citizen complaints can be sent directly to NHRC without formal procedure or fee.

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Expanding Scope Of Rights

Beyond the Fundamental Rights listed in the Constitution, the scope of rights in India and globally has been expanding over time, through judicial interpretations, legislation, and popular struggles.

Judicial judgments have expanded the meaning and scope of existing Fundamental Rights, deriving new rights such as:

• Right to freedom of press (derived from Freedom of Speech and Expression).
• Right to information (derived from Freedom of Speech and Expression, formalised by law).
• Right to education (now a formal legal right for children up to 14).
• Right to food (derived from the Right to Life by the Supreme Court).

Additionally, the Indian Constitution provides many rights that are not classified as Fundamental Rights but are still constitutional rights, such as the right to property (now a legal right, not Fundamental) and the right to vote.

The expansion of rights also occurs through the recognition of human rights – universal moral claims that may or may not be legally recognised. The global spread of democracy and international covenants contribute to pressure on governments to accept these claims. The International Covenant on Economic, Social and Cultural Rights outlines many such rights, including the right to work, healthy working conditions, fair wages, adequate living standards (food, clothing, housing), social security, health care, and education, seen as human rights standards worldwide.

New constitutions, like that of South Africa, guarantee several new rights, including the right to privacy, a healthy environment, adequate housing, and access to healthcare services, sufficient food, and water.

The evolution of rights is a continuous process, driven by societal development, struggles, and changing constitutional norms. Many advocate for including rights like the right to work, health, minimum livelihood, and privacy as Fundamental Rights in India, reflecting this ongoing expansion.