Chapter 2. Rights in Indian Constitution

Fundamental Rights in Indian Constitution
• Motilal Nehru Committee had demanded a bill of rights in 1928.
• Constitution listed rights that would be specially protected and known as them ‘Fundamental Rights.’
• word Fundamental suggests that these rights are so important that Constitution has separately listed them and made special provisions for their protection.
• Fundamental Rights are so important that Constitution itself ensures that they are not violated by government.
• Fundamental Rights are different from other rights available to us. Ordinary legal rights are protected and enforced by ordinary law, but Fundamental Rights are protected and guaranteed by Constitution of country.
• Ordinary rights may be changed by legislature by ordinary process of law-making, but a Fundamental Right may only be changed by amending Constitution.
• No organ of government can act in a manner that violates them.
• Judiciary has powers and responsibility to protect Fundamental Rights from violations by actions of government. Executive and legislative actions can be declared illegal by judiciary if they violate Fundamental Rights or unreasonably restrict them.
• However, Fundamental Rights are not absolute or unlimited rights. Government can put reasonable restrictions on exercise of our Fundamental Rights.

Right to Equality
(1) Equality before law
(2) equal protection of laws
(3) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(4) equal access to shops, hotels, wells, tanks, bathing ghats, roads .
(5) Equality of opportunity in public employment
(6) Abolition of untouchability
(7) Abolition of titles
• Right to Equality tries to do away with discrimination. It provides for equal access to public places like shops, hotels, places of entertainment, wells, bathing ghats, and places of worship.
• There cannot be any discrimination in this access on grounds only of religion, race, caste, sex, or place of birth. It prohibits any discrimination in public employment on grounds only of religion, race, caste, sex, or place of birth.
• This right is very important because our society did not practice equal access in past.
• practice of Untouchability has been abolished under Right to Equality.
• Right to Equality provides that state shall confer no title on a person except those who excel in military or academic field.
• Right to Equality strives to make India a true democracy by ensuring a sense of Equality of Dignity and status among all its citizens.
• In a society, there are various kinds of social inequalities. Constitution clarifies that government can implement special schemes and measures for improving conditions of certain sections of society: children, women, & socially and educationally backward classes.
• Article 16[4] of Constitution explicitly clarifies that a policy like reservation will not be seen as a violation of Right to Equality.

Right to Freedom
• Protection of right to
(1) Freedom of speech and expression;
(2) Assemble peacefully;
(3) Form associations/unions;
(4) Move freely throughout territory of India;
(5) Reside and settle in any part of India;
(6) Practise any profession, or to carry on any occupation, trade or business.
• Protection in respect of conviction for offences
• Right to life and personal liberty
• Right to education
• Protection against arrest and detention in certain cases
• Equality and freedom or liberty, are two rights that are most essential to a democracy.
• Liberty means freedom of thought, expression, and action. However, it does not mean freedom to do anything that one desires or likes.
• Freedoms are defined in such a manner that every person will enjoy his/her freedom without threatening freedom of others and without endangering law-and-order situation.

Right to life and Personal liberty
• No citizen can be denied his or her life except by procedure as laid down under law. Similarly, no one can be denied his/her personal liberty.
• That means no one can be arrested without being told grounds for such an arrest. If arrested, person has right to defend him/herself by a lawyer of his/ her choice.
• Also, police must take that person to nearest magistrate within 24 hours. magistrate, who is not part of police, will decide whether arrest is justified or not.
• Various judgments of Supreme Court have expanded scope of this right. Supreme Court has ruled that this right includes right to live with human dignity, free from exploitation.
• court has held that right to shelter and livelihood is included in right to life because no person can live without means of living, that is, means of livelihood.

Preventive detention
• Generally, a person is arrested after he or she has committed some offence.
• Under Preventive Detention, a person can be arrested or detained without committing an offence if government feels that a person can be a threat to law and order or peace and security of nation.
• This preventive detention can be extended only for three months. After three months, such a case is brought before an advisory board for review. This is an effective tool in hands of government to deal with anti-social elements or trouble makers.

Other Freedoms
• Under Right to Freedom, there are some other rights as well. These rights however are not absolute. Each of these is subject to restrictions imposed by government.
• Right to Freedom of Speech and Expression is subject to restrictions such as public order, peace, morality.
• Freedom to Assemble too is to be exercised peacefully and without arms.
• government may impose restrictions in certain areas declaring assembly of five or more persons as unlawful.

Rights of Accused
• Our Constitution ensures that persons accused of various offences would get sufficient protection. This is 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, Constitution has provided three rights:
(1) No person would be punished for same offence more than once, (2) No law shall declare any action as illegal from a backdate, and
(3) No person shall be asked to give evidence against himself or herself.

Right Against Exploitation
• Prohibition of traffic in human beings and forced labour.
• Prohibition of employment of children in hazardous jobs.
• Constitution prohibits beggar or forced labour without payment, buying & selling of human beings and using them as slaves.
• Constitution forbids employment of children below age of 14 years in dangerous jobs like factories and mines.

Right to Freedom of Religion
• Freedom of conscience and free profession, practice & propagation of religion.
• Freedom to manage religious affairs.
• Freedom to pay taxes for promotion of any particular religion.
• Freedom to attend religious instruction or worship in certain educational institutions.
• According to our Constitution, everyone enjoys right to follow religion of his or her choice.
• Democracy has always incorporated freedom to follow religion of one’s choice as one of its basic principles.

Freedom of Faith and Worship
• In India, everyone is free to choose a religion and practice that religion.
• Freedom of religion includes freedom of conscience. This means that a person may choose any religion or may choose not to follow any religion.
• Freedom of religion includes freedom to profess, follow & propagate any religion.
• Freedom of religion is subject to certain limitations. government can impose restrictions on practice of freedom of religion to protect public order, morality, & health.
• This means that freedom of religion is not an unlimited right. government can interfere in religious matters for rooting out certain social evils.
• limitations on right to freedom of religion always produce tensions between followers of various religions and government.
• Constitution has guaranteed right to propagate one’s religion. This includes persuading people to convert from one religion to another.
• Constitution does not allow forcible conversions. It only gives us right to spread information about our religion and thus attract others to it.

Equality of all religions
• In a country like India which is home to several religions, it is necessary that government must extend equal treatment to different religions.
• India does not have any official religion. We don’t have to belong to any particular religion to be a Prime Minister or President or Judge or any other public official.
• institutions run by state will not preach any religion or give religious education, nor will they favour persons of any religion. objective of these provisions is to sustain and nurture principle of Secularism.

Cultural and Educational Rights
• Protection of language, culture of minorities
• Right of minorities to establish educational institutions We are a society that has vast diversity. In such a society that is full of diversity, there would be social sections that are small in numbers compared to some other groups.
• Our Constitution believes that diversity is our strength. Therefore, one of Fundamental Rights is right of minorities to maintain their culture.
• minority status is not dependent only upon religion. Linguistic and Cultural Minorities are included in this provision.
• Minorities are groups that have a common language or religion and in a particular part of country or in country as a whole, they are outnumbered by some other social section.
• Such communities have a culture, language, & script of their own, and have right to conserve and develop these.
• All minorities, religious or linguistic, can set up their own educational institutions and can preserve and develop their own culture.
• government will not discriminate while granting aid to educational institutions against any educational institution on basis that it is under management of a minority community.

Right to Constitutional Remedies
• Dr. Ambedkar considered Right to Constitutional Remedies as ‘heart and soul of Constitution.’ This is because this right gives a citizen right to approach a High Court or Supreme Court to get any of Fundamental Rights restored in case of their violation.
• Supreme Court and High Courts can issue orders and give directives to government for enforcement of rights.
• courts can issue various special orders called writs:
(1) Habeas corpus: A writ of habeas corpus means that court orders that arrested person should be presented before it. It can order to set free an arrested person if manner or grounds of arrest are not lawful or satisfactory.
(2) Mandamus: This writ is issued when court finds that a particular office holder is not doing legal duty and thereby is infringing on right of an individual.
(3) Prohibition: This writ is issued by a higher court [High Court or Supreme Court] when a lower court has considered a case going beyond its jurisdiction.
(4) Quo Warranto: If court finds that a person is holding office but is not entitled to hold that office, it issues writ of quo warranto and restricts that person from acting as an officeholder.
(5) Certiorari: Under this writ, court orders a lower court or another authority to transfer a matter pending before it to higher authority or court.

Right to Property
• In Constitution, originally, there was a fundamental right to ‘acquire, possess & maintain’ property. But Constitution made it clear that property could be taken away by government for public welfare.
• Since 1950, government made many laws that limited this right to property, and this caused conflict.
• In 1973, Supreme Court gave a decision that Right to Property was not part of basic structure of Constitution, and therefore, parliament had power to abridge this right by an amendment.
• In 1978, 44th amendment to Constitution removed right to property from list of Fundamental Rights and converted it into a simple legal right under article 300 A.

Fundamental Duties
• In 1976, 42nd amendment to Constitution was passed.
• Among other things, this amendment inserted a list of Fundamental Duties of Citizens. In all, ten duties were enumerated.
• As citizens, we should follow fundamental duties and must abide by Constitution, defend our country, promote harmony among all citizens, and protect environment.

Directive Principles of State Policy
• Under this, some guidelines were incorporated in Constitution, but they were not made legally enforceable. This means that if a government did not implement a particular guideline, we cannot approach court asking court to instruct government to implement that policy. Therefore, these guidelines are non-justiciable.
• Directive Principles of State Policy lists mainly three things:
(1) goals and objectives that we as a society should adopt;
(2) Certain rights that individuals should enjoy apart from Fundamental Rights; and
(3) Certain policies that government should adopt.
• governments from time to time tried to give effect to some Directive Principles of State Policy. They passed several zamindari abolition bills, nationalised banks, enacted numerous factory laws, fixed minimum wages, cottage, & small industries were promoted and provisions for reservation for uplift of scheduled castes and scheduled tribes were made.

Directive Principles
Goals
• Welfare of people; Social, economic & justice
• Raising standard of living; equitable distribution of resources
• Promotion of international peace
Policies
• Uniform civil codes
• Prohibition of consumption of alcoholic liquor
• Promotion of cottage industries
• Prevention of slaughter of useful cattle
• 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
• Early childhood care and education to children below age of six years

Fundamental Rights vs Directive Principles of State Policy
• This is possible to see both Fundamental Rights and Directive Principles as complementary to each other.
• Fundamental Rights restrain government from doing certain things while Directive Principles exhort government to do certain things.
• Fundamental Rights mainly protect rights of individuals while Directive Principles ensure well-being of entire society.
• At times, when government intends to implement Directive Principles of State Policy, it can come in conflict with Fundamental Rights of citizen.
• government claimed that rights can be abridged for giving effect to Directive Principles. On other hand, court held view that Fundamental Rights were so important and sacred that they cannot be limited, even for purposes of implementing Directive Principles.
• This generated another complicated debate. government was saying that Parliament can amend any part of Constitution. court was saying that Parliament cannot make an amendment that violates Fundamental Rights. This controversy was settled by an important decision of Supreme Court in Kesavananda Bharati case.
• court said that there are certain basic features of Constitution and these cannot be changed by Parliament.

National Human Rights Commission [NHRC]
• National Human Rights Commission [NHRC] is composed of a former Chief Justice of Supreme Court of India, a former judge of Supreme Court, a former Chief Justice of High Court, and two other members who have knowledge and practical experience in matters relating to human rights.
• Commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights; visiting jails to study condition of inmates; undertaking and promoting research in field of human rights.

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