Rights in The Indian Constitution: Chapter Two
Rights in The Indian Constitution: Chapter Two
Rights in The Indian Constitution: Chapter Two
Chapter Two
RIGHTS IN THE INDIAN
CONSTITUTION
INTRODUCTION
A constitution is not only about the composition of the various organs of
government and the relations among them. As we studied in the last chapter,
the constitution is a document that sets limits on the powers of the government
and ensures a democratic system in which all persons enjoy certain rights. In this
chapter, we shall study the Fundamental Rights contained in the Indian
Constitution. Part three of the Constitution of India lists the Fundamental
Rights and also mentions the limits on these rights. In the past fifty years, the
scope of rights has changed and in some respects, expanded. After studying this
chapter, you would know
what are the various Fundamental Rights listed in the Constitution of India;
how these rights are protected;
what role the judiciary has played in protecting and interpreting these rights;
26 and
what is the difference between the Fundamental Rights and the Directive
Principles of State Policy.
Chapter 2: Rights in the Indian Constitution
Bill of Rights
Both these examples show the importance of having rights
and of the actual implementation of these rights. A
democracy must ensure that individuals have certain
rights and that the government will always recognise these
rights. Therefore it is often a practice in most democratic
countries to list the rights of the citizens in the constitution
itself. Such a list of rights mentioned and protected by
the constitution is called the ‘bill of rights’. A bill of rights
prohibits government from thus acting against the rights
of the individuals and ensures a remedy in case there is
violation of these rights.
From whom does a constitution protect the rights of
the individual? The rights of a person may be threatened
by another person or private organisation. In such a
situation, the individual would need the protection of the
government. So, it is necessary that the government is
bound to protect the rights of the individual. On the other
hand, the organs of the government (the legislature,
executive, bureaucracy or even the judiciary), in the course
of their functioning, may violate the rights of the person.
I get it! The bill of rights
is like a warrantee card
FUNDAMENTAL RIGHTS IN THE INDIAN
that we get when we
CONSTITUTION
purchase a TV or a fan.
During our freedom struggle, the leaders of the freedom
Isn’t it? movement had realised the importance of rights and
demanded that the British rulers should respect rights of
the people. The Motilal Nehru committee had demanded
28 a bill of rights as far back as in 1928. It was therefore,
natural that when India became independent and the
Constitution was being prepared, there were no
Chapter 2: Rights in the Indian Constitution
RIGHT TO EQUALITY
Consider the following two situations. These are imaginary situations.
But similar things do happen and can happen. Do you think they
involve violation of fundamental rights?
Swadesh Kumar is visiting his village. He is accompanied by one of his
friends. They decided to have a cup of tea at the village roadside hotel. The
shopkeeper knew Swadesh Kumar but asked the name of his friend to know
his caste. After this the shopkeeper served tea to Swadesh Kumar in a nice
mug while his friend was given tea in an earthen cup because he was dalit.
An order is served to four newsreaders of a television channel that they
would no longer read the news on screen. They are all women. The reason
30 given is that they are above the age of forty-five. Two male newsreaders
above the same age are not barred from presenting the news.
Chapter 2: Rights in the Indian Constitution
RIGHT TO FREEDOM
Equality and freedom or liberty, are the two rights that
are most essential to a democracy. It is not possible to
think of the one without thinking of the other. Liberty
means freedom of thought, expression and action. However
it does not mean freedom to do anything that one desires
or likes. If that were to be permitted then a large number
of people will not be able to enjoy their freedom. Therefore,
freedoms are defined in such a manner that every person
will enjoy her freedom without threatening freedom of
others and without endangering the law and order
situation.
has ruled that this right also includes right to live with human dignity,
free from exploitation. The court has held that right to shelter and 35
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.
Preventive detention
Ordinarily, a person would be arrested after he or she has reportedly
committed some offence. However there are exceptions to this.
Sometimes a person can be arrested simply out of an apprehension
that he or she is likely to engage in unlawful activity and imprisoned
for some time without following the above mentioned procedure. This
is known as preventive detention. It means that if the government
feels that a person can be a threat to law and order or to the peace
and security of the nation, it can detain or arrest that person. This
preventive detention can be extended only for three months. After
three months such a case is brought before an advisory board for
review.
On the face of it, preventive detention looks like an effective tool
in the hands of the government to deal with anti-social elements or
subversives. But this provision has often been misused by the
government. Many people think that there must be greater safeguards
in this law so that it may not be misused against people for reasons
other than that which are really justified. In fact, there is a clear
tension between right to life and personal liberty and the provision
for preventive detention.
Other freedoms
You can see that under the 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 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. Such powers can be
easily misused by the administration. The genuine protest against
an act or policy of government by the people may be denied
Indian Constitution at Work
Somnath Lahiri
[CAD, Vol. III, p. 404]
Rights of accused
Our Constitution ensures that persons accused of various offences
would also get sufficient protection. We often tend to believe that
anyone who is charged with some offence is guilty. However, 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 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,
36
and
no person shall be asked to give evidence against himself or
herself.
Chapter 2: Rights in the Indian Constitution
Activity
Make a list of public religious activities that take
place in your village or city.
Which of these involve an exercise of right to religious
freedom?
Discuss what could have happened if this right was
not available to people in your locality.
D IRECTIVE P RINCIPLES
Goals
Right to work;
Policies
Right of children to free and
Uniform civil code; compulsory education
Prohibition of
consumption of
alcoholic liquor;
Promotion of cottage
industries;
Prevention of slaughter of
useful cattle; Tell me what is the point
of saying nice things in
Promotion of village the Constitution if these
panchayats. cannot be implemented by
any court?
Indian Constitution at Work
Right to Property
Behind the controversy about the relationship between rights
and directive principles, there was one important reason: in
the Constitution, originally, there was a fundamental right to
‘acquire, possess and maintain’ property. But the Constitution
made it clear that property could be taken away by the
government for public welfare. Since 1950, government made
many laws that limited this right to property. This right was at
the centre of the long debate over the relationship between rights
and directive principles. Finally, in 1973, the Supreme Court
gave a decision that the right to property was not part of the
basic structure of the Constitution and therefore, parliament
had power to abridge this right by an amendment. In 1978, the
44th amendment to the Constitution removed the right to property
from the list of Fundamental Rights and converted it into a simple
46 legal right.
What difference, do you think, this change of status makes
to the right to property?
Chapter 2: Rights in the Indian Constitution
Conclusion
48
Chapter 2: Rights in the Indian Constitution
Exercises 49
1. Write true or false against each of these statements:
a) A Bill of Rights lays down the rights enjoyed by the people of a
country.
b) A Bill of Rights protects the liberties of an individual.
c) Every country of the world has a Bill of Rights.
d) The Constitution guarantees remedy against violation of Rights.
6. An activist working among the poor says that the poor don’t need
Fundamental Rights. What they need are Directive Principles to be
made legally binding. Do you agree with this? Give your reasons.
50