💪RIGHTS IN THE INDIAN CONSTITUTION
A Constitution is not only about the composition of the various organs of government and the relations among them. The constitution is a document that set limits on the powers of the government and ensures a democratic system in which all persons enjoy certain rights.
The Importance of Rights
‘‘Rights are the rules that helps to make everyone equal.’’ For example, in 1982, Asian games contractors employed constructional workers, who were kept in a poor working condition and were paid less than the minimum wage, which is a violation of fundamental right. It was challenged in the Supreme court. The court directed the government to ensure that workers to get their prescribed wages. The constitution guarantees the right against exploitation(Article-23) ensured justice to these workers. Therefore ‘‘Supreme court is the protector and guarantor of fundamental rights.’’
Bill of Rights
A Democracy must ensure that individuals have certain rights and that the government will always recognize these rights. These recognized and protected rights are called Bill of rights. A bill of rights prohibits the government from acting against the rights of the individuals and ensures a remedy in case there is a violation of these rights.
Fundamental Rights in the Indian Constitution
Motilal Nehru committee had demanded a bill of rights in 1928. The Constitution listed the rights that would be specially protected and called them as fundamental rights. These rights are important that the constitution has separately listed them and made special provisions for their protection. Judiciary has the powers and responsibility to protect the fundamental rights from violation by actions of the government. Executive and legislative actions can be declared as void by the judiciary. if these violate the fundamental rights.
Fundamental Rights
1. Protected and guaranteed by the constitution.
2. These rights may only be changed by amending the constitution itself.
Ordinary Legal Rights
1. Protected and enforced by ordinary law.
2. These rights can be changed by the legislature by the ordinary process of law making.
Fundamental Right
The constitution provided initially seven Fundamental Rights, but later Right to Property was deleted from the list of Fundamental Rights through 44th Amendment Act, 1978.
1. Right to Equality (Articles 14-18)
2. Right to liberty and personal freedom (Article19-22)
3. Right against exploitation (Articles23-24)
4. Right to freedom of religion (Articles25-28)
5. Cultural and educational of minority rights (Articles 29-30)
6. Rights to constitutional remedies (Article-32)
Right to Equality
The right to equality provides for the equal treatment of everyone before the law, prevents discrimination on various grounds, treats everybody as equals in matter of public employment, and abolishes untouchability, and titles.
Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of right to equality because the spirit of the constitution see this, as it is required for the fulfillment of the right to equality of opportunity.
Right to Freedom
Equality and freedom or liberty are the two rights that are most essential to a democracy.
Freedoms are defined in a such manner that every person will enjoy their freedom without threatening freedom of others and without endangering the law and order.
Right to life and personal liberty
No citizen can be denied his or her life except by procedure as laid down under the law.
No one can be denied his/her personal liberty. This right is not just confined to a guarantee against taking away of an individual’s life but has wider application.
Various judgments of Supreme Court have expanded the scope of this right. The Supreme Court has ruled that ‘‘this right also includes right to live with human dignity, free from exploitation.’’
Preventive Detention
Preventive detention is an action taken on the grounds of suspicious that some wrong actions may be done by the person concerned.
This preventive detention can be extended only for three months for both citizens and aliens, unless an advisory body deports sufficient cause.
Other freedoms
Some of these rights are not absolute. Each of these is subject to restrictions imposed by the government.
For example 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 as unlawful.
Rights of Accused
The Constitution ensures that persons accused of various offences would also get sufficient protection. It is necessary that a person accused of any crime should get 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, and No person shall be asked to give evidence against himself or herself.
Rights Against Exploitation
The right against exploitation seeks to protect citizens from being forced to work against their wishes.
Some form of bonded labour still continues in the country, specially in brick kiln work. It has now been declared a crime and it is punishable.
The Constitution also forbids employment of children below the age of 14 years in dangerous jobs. With child labour being made illegal and right to education becoming a fundamental right for children, Slavery was not mentioned in the Indian constitution but it was indirectly abolished through articles 23 &24.
Freedom of Faith and Worship
In India, everyone is free to choose a religion and practice that religion.
Freedom of religion also includes the freedom of conscience and profess, follow and propagate any religion (Article-25).
But the constitution does not allow forcible conversions, it gives only the right to spread the information about the religion.
Freedom of religion is subject to certain limitations. The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.
Equality of all religions
India is home to several religions, India as a state doesn’t have any official religion.
It is necessary that the government must extend equal treatment to different religions.
The institutions run by the state will not preach any religion or give religious education nor will they favour persons of any religion, because the objective of these provisions is to sustain and nurture the principle of secularism.
Cultural and Educational Rights
Our constitution believes that diversity is our strength, so to preserve the culture of all minority groups in India, the Constitution guarantees these rights to minorities so that the diversity of this country is preserved.
Protection of language, script and culture of minorities (Article-29). Rights of minorities to establish and administer educational institutions(Article30).
Right to Constitutional Remedies
Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.
The Supreme Court (Article-32)and the High Courts(Article-226) can issue orders and give directives to the government for the enforcement of rights.
The courts can issue various special orders known as writs:-
Habeas corpus : means that the court orders that the arrested person should be presented before it.
Mandamus : This writ is issued when the court finds that a particular office holder is not doing legal duty and there by is infringing on the right of an individual.
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.
Certiorari : Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.
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 office holder.
Apart from judiciary many other mechanisms have been created in later years for the protection of rights like, National Commission for Minorities, Women, Scheduled Castes, Human Rights etc.
Directive Principles of State Policy
These are the ideals that the state should keep in mind while formulating policies and enacting laws. Directive Principles lists mainly three things:
i). The goals and objectives that we as a society should adopt;
ii). Certain rights that individuals should enjoy apart from the Fundamental Rights; and
iii). 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, factory laws, the right to education, Panchayati Raj etc.
Relationship Between Fundamental Rights and Directive Principles
1. Directive principles along with the Fundamental Rights contain the philosophy of the constitution and is the soul of the constitution.
2. Fundamental Rights restrain the government from doing certain things while directive principles exhort the government to do certain things.
3. Fundamental rights protect the right of the individuals, while directive principles ensure the well being of the entire society.
Kesavananda Bharati case
At times, when the government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizen. Like, when the government sought to pass laws to abolish the zamindari system. These measures were opposed on the ground that they violated right to property.
However, keeping in mind the societal needs that are greater than the individual interests, the government amended the Constitution to give effect to the Directive Principles of State Policy.
This generated another complicated debate relating to the amendment of the Constitution. The government was saying that Parliament can amend any part of the Constitution. The court was saying that Parliament cannot make an amendment that violated Fundamental Rights.
This controversy was settled by an important decision of the Supreme Court in Kesavananda Bharati case. In this case, the court said that there are certain basic features of the Constitution and these cannot be changed by Parliament.
Fundamental Duties
In 1976, the 42nd amendment to the Constitution was passed. This amendment inserted a list of Fundamental Duties of Citizens. However, the Constitution does not say anything about enforcing these duties.
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