Chapter 2 Rights In The Indian Constitution

As established in the previous chapter, a constitution is not merely a framework for government organs and their relationships. It also serves to limit government powers and ensure a democratic system where all individuals possess certain rights. This chapter focuses on the Fundamental Rights enshrined in the Indian Constitution. Part three of the Constitution of India explicitly lists these rights and outlines limitations on them. Over the past six decades, the scope and interpretation of these rights have evolved and, in some aspects, expanded.

After studying this chapter, you will understand:

• The various Fundamental Rights listed in the Indian Constitution.
• How these rights are legally protected.
• The role of the judiciary in safeguarding and interpreting these rights.
• The distinction between Fundamental Rights and Directive Principles of State Policy.

The Importance Of Rights

The significance of having rights and ensuring their practical implementation can be seen through various examples. In 1982, construction workers hired for the Asian Games were paid less than the government-mandated minimum wage, kept in poor conditions. Social scientists petitioned the Supreme Court, arguing this amounted to begar (forced labor without proper payment), violating the Fundamental Right against exploitation. The Court agreed, ordering the government to ensure workers received rightful wages. This demonstrates how constitutional guarantees of rights can provide justice when challenged in court.

Another case, that of Machal Lalung, illustrates the tragedy when rights are not implemented. Arrested at 23, deemed mentally unstable for trial, he spent 54 years in custody without a proper hearing, eventually released at 77 after intervention by the National Human Rights Commission. This highlights the violation of the constitutional right to 'life and personal liberty', which includes the right to a fair and speedy trial. Even if Machal were rich or the workers engineers, their fundamental rights, being universal, would still be violated.

These cases underline the critical importance of both possessing constitutional rights and ensuring their actual availability and enforcement in practice for all citizens, regardless of their background.

Bill Of Rights

Recognizing the importance of safeguarding citizens' rights from potential government overreach or violation by others, most democratic countries list these rights in their constitution. Such a list of constitutionally protected rights is called a 'bill of rights'. A bill of rights serves to prohibit the government from acting against individual rights and provides legal remedies in case of violations. It protects individuals from threats to their rights by other persons, private organizations, or even organs of the government itself (legislature, executive, judiciary). For example, the Bill of Rights in the South African Constitution provides extensive protections against various forms of discrimination and guarantees a wide range of rights.

An excerpt or image related to the Bill of Rights in the Constitution of South Africa, illustrating the comprehensive listing of guaranteed rights.

The Bill of Rights is thus like a fundamental guarantee or a 'warrantee card' for citizens, outlining their entitlements and the limitations on state power, ensuring democratic governance where rights are respected and upheld.

Fundamental Rights In The Indian Constitution

During India's freedom struggle, the importance of rights was recognized by leaders who demanded respect for people's rights from the British rulers. The Motilal Nehru committee in 1928 had already called for a bill of rights. Thus, when India gained independence and prepared its Constitution, including and protecting rights was a consensus. The Constitution listed specially protected rights as 'Fundamental Rights'.

The term 'fundamental' emphasizes the crucial importance of these rights, which are separately listed and given special provisions for protection in the Constitution itself. The Constitution ensures Fundamental Rights are not violated by the government. Unlike ordinary legal rights, which can be changed by ordinary laws passed by the legislature, Fundamental Rights can only be altered by amending the Constitution itself. No government organ can act to violate or unreasonably restrict Fundamental Rights. The judiciary (Supreme Court and High Courts) is specifically empowered and responsible for protecting these rights from government actions. However, Fundamental Rights are not absolute; the government can impose reasonable restrictions on their exercise based on grounds specified in the Constitution (e.g., public order, security).

Comparison with the Bill of Rights in the South African Constitution shows some common rights (e.g., Right to Dignity, Privacy, Fair Labor Practices, Housing, Healthcare, Education, Children's Rights, Cultural/Religious/Linguistic Rights, Information). Some rights explicitly listed in South Africa might be implicit in the Indian Constitution, demonstrating variations in formulation and scope across different constitutional frameworks.

Right To Equality

The Right to Equality is a cornerstone of Indian democracy, aiming to eliminate discrimination and ensure equal treatment and status for all citizens. It is one of the most essential rights.

The Right to Equality covers several aspects:

• Equality before law and equal protection of laws: All citizens are equal in the eyes of the law and are entitled to equal protection by the law.
• Prohibition of discrimination: Discrimination on grounds of religion, race, caste, sex, or place of birth is prohibited. This ensures equal access to public places like shops, hotels, wells, tanks, bathing ghats, and roads.
• Equality of opportunity: Guarantees equal opportunity in public employment.
• Abolition of Untouchability: Declares the practice of untouchability illegal and a punishable offence, addressing a historical form of extreme inequality.
• Abolition of titles: Prohibits the state from conferring titles (except military or academic distinctions) to ensure equality of status.

These provisions are crucial because Indian society historically practiced significant inequalities, including unequal access to public spaces and discrimination in employment based on caste or other factors. The Right to Equality aims to make India a true democracy by ensuring equal dignity and status for all citizens.

The Preamble to the Constitution emphasizes both equality of status and equality of opportunity. While equality of status means everyone is treated with equal dignity, equality of opportunity aims to ensure all sections of society have equal chances. Recognizing existing social inequalities, the Constitution clarifies that the government can implement special schemes for disadvantaged sections (children, women, socially/educationally backward classes). This includes policies like 'reservations' in jobs and admissions. Article 16(4) explicitly states that reservation policies are not a violation of the Right to Equality; instead, they are considered necessary for the fulfillment of the Right to Equality of Opportunity, helping level the playing field for historically disadvantaged groups.

Cases involving clear discrimination based on caste (e.g., serving tea in separate cups) or gender (e.g., mandatory retirement for female newsreaders based on age while males are exempt) would be violations of the Right to Equality.

Right To Freedom

Right to Freedom is one of the most essential rights in a democracy, intrinsically linked with equality. Liberty means freedom of thought, expression, and action. However, it is not an unlimited right to do anything one pleases, as this would restrict the freedom of others. Freedoms are defined with reasonable restrictions to ensure everyone can enjoy their freedom without threatening others' freedom or public order.

Right To Life And Personal Liberty

The most fundamental freedom is the right to life and personal liberty (Article 21). No citizen can be deprived of life or personal liberty except according to the procedure established by law. This means:

• No arbitrary arrest: No one can be arrested without being informed of the grounds for arrest.
• Right to legal counsel: An arrested person has the right to be defended by a lawyer of their choice.
• Mandatory appearance before magistrate: Police must present an arrested person before the nearest magistrate within 24 hours (excluding travel time), who assesses the arrest's justification.

This right has been broadly interpreted by the Supreme Court to include not just physical existence but also the right to live with human dignity, free from exploitation. The Court has included the right to shelter and livelihood within the scope of the right to life, as these are essential means of living.

The question of whether life can be taken away by law refers to legal procedures like capital punishment (death penalty), which is carried out only in the rarest of rare cases under strict legal provisions established by law, not arbitrarily.

Preventive Detention

An exception to the usual procedure for arrest is preventive detention. This allows the government to detain a person if there is an apprehension that they are likely to engage in unlawful activity that could threaten law and order or national security and peace. A person can be imprisoned for up to three months initially without the standard arrest procedure. Beyond three months, the case must be reviewed by an advisory board.

While intended to deal with anti-social elements or threats, preventive detention is seen by many as potentially misused and creating tension with the fundamental right to life and personal liberty. Demands exist for greater safeguards to prevent its misuse.

Other Freedoms

Under the Right to Freedom, other specific freedoms are guaranteed, such as freedom of speech and expression, freedom to assemble peacefully and without arms, freedom to form associations/unions, freedom to move freely and reside/settle anywhere in India, and freedom to practice any profession or carry on any occupation, trade, or business. However, these freedoms are not absolute; they are subject to reasonable restrictions imposed by the government based on specified grounds (e.g., public order, morality, security, defamation). For example, freedom of speech is restricted if it incites violence or endangers public order. Freedom to assemble must be peaceful and unarmed. While restrictions can be misused by authorities (e.g., denying permission for genuine protests), citizen awareness and vigilance can help counter such misuse.

Somnath Lahiri's statement in the Constituent Assembly reflects concern that the listed fundamental rights were framed with many provisos or restrictions, potentially limiting their actual scope and suggesting a minimum rather than a full guarantee of rights. He argued for incorporating broader rights that the people desired.

Rights Of Accused

The Constitution also provides protection for persons accused of offenses to ensure fair trials. Three rights are guaranteed:

• No double jeopardy: No person can be punished for the same offense more than once.
• No ex post facto law: No law can declare an action illegal retroactively (from a backdate). An act is illegal only if it was illegal at the time it was committed.
• No self-incrimination: No person can be compelled to give evidence against themselves.

These rights ensure that the legal process is fair and that accused persons have adequate opportunity to defend themselves, reflecting the principle that one is presumed innocent until proven guilty by a court.

Right Against Exploitation

The Right against Exploitation aims to protect vulnerable populations from various forms of forced labor and exploitation prevalent in society. It prohibits:

• Traffic in human beings: Buying and selling of human beings, akin to slavery, is outlawed.
• Begar or forced labour: Compulsory labor without payment, historically imposed by landlords or wealthy individuals, is prohibited. Forms of bonded labor, where individuals are forced to work to repay debts, are included and punishable by law.

The Constitution also prohibits the employment of children below the age of 14 years in hazardous jobs, such as factories and mines. With child labor now illegal and the right to education recognized as a fundamental right for children, this right against exploitation for children has become more meaningful, providing protection from harmful work and promoting their right to education.

The photograph likely depicts children engaged in child labor, which is a violation of the Fundamental Right against Exploitation and the Right to Education.

A photograph illustrating a situation that depicts a violation of fundamental rights, possibly showing child labor or other forms of exploitation.

Right To Freedom Of Religion

The Right to Freedom of Religion is considered a hallmark of democracy, recognizing the importance of individual choice in matters of faith. Historically, rulers often imposed their religion on subjects, leading to persecution or forced conversions. Democracy incorporates freedom of religion as a basic principle.

Freedom Of Faith And Worship

Under the Indian Constitution, every individual has the right to choose, practice, and propagate the religion of their choice. This includes freedom of conscience – the right to follow any religion or no religion. Freedom of religion is not unlimited; it is subject to restrictions based on public order, morality, and health. The government can intervene in religious matters to address social evils (e.g., banning sati, bigamy, human sacrifice), and these restrictions cannot be opposed simply on grounds of religious freedom. However, such interventions can create tensions between religious communities and the state.

The right to propagate one's religion includes informing others about it and persuading them to convert. However, forcible conversions based on intimidation or inducement are not permitted by the Constitution.

Equality Of All Religions

Given India's diverse religious landscape, the Constitution mandates equal treatment for all religions. The government does not favor any particular religion; India has no official state religion. Membership in a specific religion is not a requirement for holding public office. Under the Right to Equality, the government is prohibited from discriminating in employment based on religion. State-run institutions are not to preach any religion or provide religious education, nor should they favor individuals of any particular religion. These provisions are intended to uphold the principle of secularism, ensuring the state's neutrality towards all religions and preventing religious favoritism.

Cultural And Educational Rights

Recognizing India's vast diversity, particularly the existence of groups small in number compared to others (minorities), the Constitution guarantees Cultural and Educational Rights. This is based on the belief that diversity is a strength and minority groups should not be forced to adopt the culture of the majority.

These rights protect the right of minorities to maintain their distinct culture. Minority status is determined by language or religion, not just religion alone. Groups with a common language or religion that are outnumbered by others in a specific area or the country as a whole are considered minorities. They have the right to conserve and develop their own culture, language, and script.

All minorities (religious or linguistic) have the right to establish and manage their own educational institutions. This allows them to preserve and develop their culture. While granting aid to educational institutions, the government is prohibited from discriminating against any institution based on its management by a minority community. This ensures that minority educational institutions receive aid on the same basis as others, without discrimination.

The question of minority status and rights can be complex in a diverse society where individuals may identify with multiple groups, and being a minority can be relative to a particular locality, town, or the country as a whole.

Right To Constitutional Remedies

Having an impressive list of Fundamental Rights in the Constitution is essential, but it's not enough. There must be practical means to ensure these rights are realized and protected against violations. The Right to Constitutional Remedies is the mechanism designed for this purpose. Dr. B.R. Ambedkar considered this right the 'heart and soul' of the Constitution because it empowers citizens to seek enforcement of their Fundamental Rights.

This right allows any citizen to approach the High Courts or the Supreme Court of India directly if they believe their Fundamental Rights have been violated. The higher courts have the authority to issue orders and directives (known as writs) to the government or other authorities for the enforcement or restoration of fundamental rights.

Different types of writs serve specific purposes:

• Habeas Corpus: An order requiring that an arrested person be brought before the court. The court can order the release of the arrested person if the arrest is found to be unlawful or on insufficient grounds.
• Mandamus: An order issued by a higher court to a public official or body compelling them to perform a legal duty that they have failed or refused to do, and which is infringing on an individual's right.
• Prohibition: A writ issued by a higher court to a lower court preventing the lower court from exceeding its jurisdiction or acting contrary to the rules of natural justice in a case.
• Quo Warranto: An order issued by the court challenging the authority of a person holding a public office to determine whether they are legally entitled to hold that office. It prevents a person from unlawfully holding an office.
• Certiorari: An order issued by a higher court to a lower court or a quasi-judicial body to transfer a case or a record of proceedings to the higher court for review, usually to correct an error of law or jurisdiction by the lower body.

Besides the judiciary, other independent institutions have been established to protect rights. These include the National Commission on Minorities, National Commission on Women, National Commission for Scheduled Castes, and the National Human Rights Commission (NHRC).

The National Human Rights Commission (NHRC), established in 1993, is a statutory body created by law to protect fundamental and other human rights. It includes former high-ranking judges and individuals with expertise in human rights. The NHRC can inquire into human rights violations (on its own initiative or based on petitions), visit jails to study conditions, promote research, etc. It receives thousands of complaints annually related to custodial deaths, police excesses, indignity to women, etc. While it cannot directly prosecute, it makes recommendations to the government and courts, and its interventions have been effective in certain cases (e.g., Punjab disappeared youth, Gujarat riot cases). The real test of rights lies in their implementation, and institutions like the NHRC and civil liberties organizations (e.g., PUCL, PUDR) act as watchdogs.

Directive Principles Of State Policy

The framers of the Constitution anticipated that independent India would face significant challenges, particularly related to achieving equality and well-being for all citizens. They included certain guidelines for future governments to address these problems. These guidelines, known as Directive Principles of State Policy, were incorporated into the Constitution with moral force but were not made legally enforceable or 'justiciable'. This means citizens cannot go to court to compel the government to implement a specific Directive Principle.

The intention was that the moral weight of these principles, along with public pressure, would guide government policies. The Directive Principles are listed in a separate part of the Constitution and outline:

What Do The Directive Principles Contain?

• Goals and Objectives: Aspirations for society, such as welfare of the people, social, economic, and political justice, raising living standards, equitable distribution of resources, and promotion of international peace.
• Certain Rights: Some rights individuals should ideally enjoy, distinct from legally enforceable Fundamental Rights, such as adequate livelihood, equal pay for equal work, protection against economic exploitation, right to work, early childhood care and education.
• Certain Policies: Guidelines for government policies, such as implementing a uniform civil code, prohibiting alcohol consumption, promoting cottage industries, preventing the slaughter of useful cattle, and promoting village panchayats.

Governments in India have made efforts to implement some Directive Principles through legislation and schemes, such as abolishing the zamindari system, nationalizing banks, enacting labor laws and minimum wages, promoting small industries, providing reservations, implementing the Right to Education Act, establishing Panchayati Raj, introducing employment guarantee schemes, and the mid-day meal scheme. These efforts reflect attempts to move towards the vision outlined in the Directive Principles.

While Directive Principles outline ideals and policy directions, Fundamental Rights are legally enforceable guarantees against state action. This difference in enforceability distinguishes the two.

Fundamental Duties Of Citizens

In 1976, the 42nd amendment added a list of ten Fundamental Duties for citizens to the Constitution. These duties include abiding by the Constitution, defending the country, promoting harmony, and protecting the environment. However, these duties are not legally enforceable, and importantly, the enjoyment of Fundamental Rights is not conditional upon the fulfillment of these duties. The inclusion of duties does not change the status or enforceability of fundamental rights.

Relationship Between Fundamental Rights And Directive Principles

Fundamental Rights and Directive Principles are often seen as complementary. Fundamental Rights primarily limit the government's power by prohibiting certain actions that would violate individual rights. Directive Principles, conversely, guide the government by encouraging it to undertake certain positive actions to achieve societal goals and welfare.

While complementary, conflicts can arise when the government attempts to implement Directive Principles through policies that might potentially limit or conflict with Fundamental Rights. A major conflict arose over attempts to abolish the zamindari system, which involved land redistribution and was opposed by landlords claiming violation of the right to property.

The government argued that Fundamental Rights could be restricted to implement Directive Principles, as the latter aimed for societal welfare. The judiciary, however, viewed Fundamental Rights as fundamental and sacred, not to be limited for implementing Directive Principles. This led to a long legal battle, with different positions taken by the executive and the judiciary.

The controversy was partly rooted in the fundamental right to property.

Right To Property

Originally, the Constitution included the right to property as a Fundamental Right (Article 31), allowing citizens to acquire, possess, and maintain property. However, the Constitution also allowed the government to acquire private property for public welfare, with compensation. This right became central to the conflict between Fundamental Rights and Directive Principles when the government pursued land reforms and nationalization policies aimed at equitable resource distribution (a Directive Principle).

The government's power to limit or take away property for public welfare led to legal challenges based on the Fundamental Right to Property. After much debate and court cases, the Supreme Court in the Kesavananda Bharati case (1973) ruled that while Parliament can amend any part of the Constitution, it cannot alter its 'basic structure'. The right to property was later deemed not part of this basic structure. Finally, in 1978, the 44th amendment removed the right to property from the list of Fundamental Rights and made it a simple legal right under Article 300A. This change in status means it is no longer a fundamental right enforceable directly by the Supreme Court under Article 32, but it remains a legal right protected by ordinary law. The shift aimed to prioritize socio-economic reforms guided by Directive Principles over individual property rights when the two conflicted.

The controversy about the relationship between Fundamental Rights and Directive Principles also fueled a debate about Parliament's power to amend the Constitution, particularly if amendments could violate Fundamental Rights. The Supreme Court's decision in the Kesavananda Bharati case established the 'basic structure doctrine', asserting that while Parliament has broad amending powers, it cannot change the Constitution's core or basic features. This doctrine limits Parliament's power, including regarding Fundamental Rights, and is discussed further in the chapter on the Constitution as a Living Document.

Conclusion

The Indian Constitution, a product of extensive deliberation and foresight by its framers, is a unique document that embodies fundamental values and aspirations shared by the people. Drawing upon a long tradition of the nationalist movement and borrowing from global constitutional experiences, it established a framework for democratic governance committed to the welfare of the people.

The inclusion of Fundamental Rights, interpreted and protected by the judiciary, imposes limitations on government power and ensures democratic functioning. The relationship between these rights and the Directive Principles of State Policy reflects the framers' vision for balancing individual liberties with societal well-being and reform, a dynamic relationship that has evolved through judicial interpretations and legislative actions. The Constitution is not a static document but a 'living reality', adapting to new challenges while preserving its core principles. Its ability to command voluntary allegiance stems from its commitment to the people's hopes and aspirations for justice, freedom, and equality.

The process of framing the Constitution aimed to strike the right balance among institutional arrangements and principles to accommodate the aspirations of the Indian people for a long time. This complex and unique document serves as a testament to the wisdom of its makers and has become an exemplar for other constitutions globally, most notably South Africa's.

Exercises

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