RIGHTS IN THE INDIAN CONSTITUTION

• The Motilal Nehru committee demanded the Bill of Rights in the year 1928.
• The constitution listed the rights that would be specially protected are called fundamental rights.
• The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection.
• The fundamental rights are not violated by the government.
• Ordinary legal rights are protected by ordinary laws.
• Fundamental rights are protected and guaranteed by the Constitution.
• Ordinary rights may be changed by the legislature by the ordinary process of law-making.
• The fundamental right may only be changed by amending the constitution itself.
• The judiciary has the powers and responsibility to protect fundamental rights from the actions of the government.
• Both executive and legislative actions are declared illegal by the judiciary if they violate fundamental rights or unreasonably restrict them.
• These are not absolute or unlimited rights.
• The government can put restrictions on the exercise of fundamental rights.

• The South African constitution was inaugurated in December 1996.
• The Bill of Rights is a cornerstone of democracy in South Africa.
• It forbids discrimination on the grounds of race, gender, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.
• A special constitutional court enforces the rights enshrined in the Constitution.

Some of the rights included in the constitution of South Africa are as follows.

1. Right to Dignity
2. Right to privacy
3. Right to Privacy
4. Right to fair Labour practices
5. Right to a healthy environment and right to protection of the environment
6. Right to adequate housing
7. Right to health care, food, water and social security

1. Right to basic and higher education
2. Right of cultural, religious and linguistic communities
3. Right to information

• Article 14- provides for equal access to public places like shops, hotels, places of entertainment, wells bathing Ghats and places of worship.
• Article 15- there cannot be any discrimination in this access based on caste, creed, colour, sex, religion or place of birth.
• Article 16-it prohibits discrimination in public employment on the above-mentioned basis.
• Article 16(4): nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.
• Article 17- abolished the practice of untouchability.
• Article 18- prohibits the state from conferring no title on a person except those who excel in the military or academic field.

• Equality and freedom or liberties are the two rights that are most essential to a democracy.
• Liberty means freedom of thought, expression and action.
• Every person will enjoy his or her freedom without threatening the freedom of others and without endangering the law and order situation.

Article 19-protection of 6 rights concerning the freedom of,

1. Speech and expression
2. Assembly
3. Association
4. Movement
5. Residence
6. Profession

• These rights are not absolute.
• The right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc.
• Freedom to assemble too is to be exercised peacefully and without arms.
• The government may impose restrictions in certain areas declaring the assembly of five or more persons unlawful.
• The government may deny permission for a genuine protest against an act or policy of the government.

• No citizen can be denied his or her life except by procedure as laid down under the law.
• No one can be arrested without being told the grounds for such an arrest.
• If arrested, the person has the right to defend himself with a lawyer of his choice.
• The police must take that person to the nearest magistrate for the police to take that person to the nearest magistrate within 24 hours.
• The magistrate will decide whether the arrest is justified or not.
• The Supreme Court has ruled that this right also includes the right to live with human dignity, free from exploitation.
• The court has held that the right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.
• [Article 21 A] The right to education becomes a fundamental right for children.

• Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in an unlawful activity and imprisoned for some time without following the above-mentioned procedure is known as preventive detention.
• It means that if the government feels that a person can be a threat to law and order or the peace and security of the nation, it can detain or arrest that person.
• This can be extended only for three months. After three months such a case is brought before an advisory board for review.
• It is an effective tool in the hands of the government to deal with anti-social elements or subversives.
• This provision has often been misused by the government.
• There is a clear tension between the right to life and personal liberty and the provision for preventive detention.

• The constitution ensures that persons accused of various offences would also get sufficient protection.
• No one is guilty unless the court has found that person guilty of an offence.
• It is also necessary that a person accused of any crime should get an adequate opportunity to defend herself or himself,

 To ensure a fair trial in courts, the Constitution has provided three rights.

• No person would be punished for the same offence more than once.
• No law shall declare any action as illegal from a backdate.
• No person shall be asked to give evidence against himself or herself.

• Article 23: Prohibition of Forced Labour without payment and buying and selling of human beings and using them as slaves.
• Article 24: The constitution also prohibits working of the children below 14 years of age in dangerous jobs like working in mines and factories. 

8. Right to freedom of religion

Article 25: Everyone enjoys the right to follow the religion of his or her choice.

Freedom of faith and worship

• Everyone is free to choose a religion and practice that religion.
• Freedom of religion also includes the freedom of conscience. It means that a person may choose any religion or may choose not to follow any religion.
• It includes the freedom to profess, follow and propagate any religion.
• Freedom of religion is subject to certain limitations.
• The government can impose restrictions on the practice of freedom of religion to protect public order, morality and health.
• It is not an unlimited right.
• The government can interfere in religious matters for rooting out certain social evils such as sati, bigamy or human sacrifice.
• Such restrictions cannot be opposed in the name of interference with the right to freedom of religion.
• The right to propagate one’s religion includes persuading people to convert from one religion to another.
• Some people resent conversions because these are based on intimidation or inducement.
• The constitution does not allow forcible conversions.
• It only gives us the right to spread information about our religion and thus attract others to it.

• India does not have any official religion.
• We do not have to belong to any official religion to be a prime minister president judge or any other public official.
• The government will not discriminate based on religion in giving employment.
• The institutions run by the state will not preach any religion or give religious education nor will they favour persons of any religion.
• The objective of these provisions is to sustain and nurture the principle of secularism.

• India is a monolithic society and it has a vast diversity.  Our constitution believes that diversity is our strength.
• [Article 29] Right of minorities to maintain their culture
•  This minority status is not dependent only upon religion.
• Linguistic and cultural minorities are also included in this provision.
• Minorities are groups that have a common language or religion and are in a particular part or whole of the country.
• They are outnumbered by some other social section. Such communities have a culture, language and script of their own, and have the right to conserve and develop.
• [Article 30] All minorities, religious or linguistic can set up their educational institutions.
• By doing so, they can preserve and develop their own culture.
• The government will not, while granting aid to educational institutions, discriminate against any educational institutional institution on the basis that it is under the management of a minority community.

• The Constitution contains a very impressive list of Fundamental Rights.
• There has to be a way through which they could be realized in practice and defended against any attack on these rights.
• Dr Ambedkar considered the right to constitutional remedies as the ‘heart and soul of the constitution.
• It gives a citizen the right to approach a High Court or Supreme Court to get any of the fundamental rights restored in case of a violation.
• The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

Courts can issue various special orders known as Writs.

• Habeas corpus: it means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of an arrested person if the manner or grounds arrest are not lawful or satisfactory.
• Mandamus: this writ is issued when the court finds that a particular officeholder is not doing legal duty and thereby is infringing on the right of an individual.
• Prohibition: this writ is issued by a higher court (high court or Supreme Court) when the lower court has considered a case going beyond its jurisdiction.
• Quo Warranto: if the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an officeholder.
• Certiotrari: the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

Apart from the judiciary, many other mechanisms have been created in the later years for the protection of rights. National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes etc., these institutions protect the rights of women, minorities or Dalits. Besides, the National Human Rights Commission was established by law to protect fundamental and other kinds of rights.

In this view, poor, illiterate and deprived sections of society must be able to exercise their rights. Independent organizations like the People’s Union for Civil Liberties or the People’s Union for Democratic Rights have been working as watchdogs against the violations of rights. The National Human Rights Commission was established in 2000. 

Composition

• A former chief justice of the Supreme Court of India,
• A former chief justice of the Supreme Court,
• A former chief justice of the High Court and
• Two other members who have the knowledge and practical experience in matters relating to human rights

Functions

• Inquiry at its initiative or on a petition presented to it by a victim into a complaint of a violation of human rights.
• Visit jails to study the condition of the inmates,
• Promoting and undertaking research in the field of human rights etc.

Commission receives complaints related to custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to women etc.

Investigation and trial of Gujarat riot cases and disappeared youth in Punjab proved effective.

• It does not have the power of prosecution.
• It can merely make recommendations to the government or to the courts to initiate proceedings based on the inquiry that it conducts.

• Some guidelines were incorporated in the Constitution but they were not made legally enforceable.
• If a government did not implement a particular guideline, we cannot go to the court asking the court to instruct the government to implement that policy.
• Thus these guidelines are non-justiciable i.e., parts of the Constitution that cannot be enforced by the judiciary.
• The moral force behind these guidelines would ensure that the government would take them seriously.
• The people would also hold the governments responsible for implementing these directives.
• So, a separate list of policy guidelines is included in the constitution.

Directive Principles contain three things.

1. The goals and objectives that we as a society should adopt,
2. Certain rights that individuals should enjoy apart from the fundamental rights,
3. Certain policies that the government should adopt.

The governments from time to time tried to give effect to some directive principles of state policy.

They passed several Zamindari abolition bills, nationalized banks, enacted numerous factory laws, cottage and small-scale industries, and fixed minimum wages and provisions for reservation for the uplift of the scheduled castes and scheduled tribes.

Such efforts to give effect to the Directive Principles include the right to education, the formation of Panchayati raj institutions all over the country, partial right to work under the employment guarantee programme and the mid-day meal scheme etc.

• The 42^nd constitutional amendment was passed in 1976. Ten fundamental duties were enumerated. However, the Constitution does not say anything about enforcing these duties.
• As citizens, we must abide by the Constitution, defend our country, promote harmony among all citizens, and protect the environment.
• However, it must be noted that our constitution does not make the enjoyment of rights dependent or conditional upon the fulfilment of duties. In this sense, the inclusion of fundamental duties has not changed the status of our fundamental rights.

Directive Principles

Goals

1. Welfare of the people,
2. Social, political-economic justice,
3. Rising the standard of living
4. Equitable distribution of resources
5. Promotion of international peace.

Policies

1. Uniform civil code
2. Prohibition of consumption of alcoholic liquor
3. Promotion of cottage industries
4. Prevention of slaughter of useful cattle
5. Promotion of village panchayats

Non- justiciable rights

• Adequate livelihood
• Equal pay for equal work [for men and women]
• Right against economic exploitation

Right to work: Right of children to free and compulsory education

Relationship between fundamental rights and directive principles

Both are complementary to each other.

• When government intends to implement directive principles of state policy, it can come in conflict with the Fundamental Rights of the citizen.
• For example, the abolishment of the Zamindari system violates the property rights.
• The government claimed that rights can be abridged to give effect to Directive Principles.
• This argument assumed that rights were a hindrance to the welfare of the people.
• Fundamental rights were so important and sacred that cannot be limited even to implementing Directive Principles.
• The government was saying that Parliament can amend any part of the constitution.
• In the Supreme Court in the Kesavananda Bharati case, there are certain basic features of the constitution and these cannot be changed by parliament.

• There was a fundamental to ‘acquire, possess and maintain’ property.
• It was removed by the government for public welfare.
• Since 1950, the government made many laws that limit this right to property.
• In 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the constitution
• Parliament had the power to bridge this right by an amendment.
• Through the 44^th Constitutional Amendment Act, the property right was removed from the fundamental rights and converted into a simple legal right.