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 sets limits on the powers of the government and ensures a democratic system in which all persons enjoy certain rights. 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.

THE IMPORTANCE OF RIGHTS

• In 1982 during the construction work for Asian Games the government engaged a few contractors. These contractors employed a large number of very poor construction workers from different parts of the country to build the flyovers and stadiums.
• These workers were kept in poor working conditions and were paid less than the minimum wages decided by the government.
• A team of social scientists studied their poor condition and petitioned the Supreme Court. They argued that employing a person to work for less than the minimum prescribed wage amounts to begar or forced labour, which is a violation of the Fundamental Right against exploitation.
• The court accepted this plea and directed the government to ensure that thousands of workers get the prescribed wages for their work.
• Machal Lalung was 23 when he was arrested. A resident of Chuburi village of Morigaon district of Assam, Machal was charged of causing grievous injuries. He was found mentally too unstable to stand trial and was sent as under trial to Lok Priya Gopinath Bordoloi Mental Hospital in Tejpur for treatment. Machal was treated successfully and doctors wrote twice to jail authorities in 1967 and 1996 that he was fit to stand trial. But no one paid any attention. Machal Lalung remained in “judicial custody.’’ Machal Lalung was released in July 2005. He was 77 then. He spent 54 years under custody during which his case never came up for hearing. He was freed when a team appointed by the National Human Rights Commission intervened after an inspection of undertrials in the State. Machal’s entire life was wasted because a proper trial against him never took place.
• Our Constitution gives every citizen the right to ‘life and liberty’: this means that every citizen must also have the right to fair and speedy trial. Machal’s case shows what happens when rights granted by the Constitution are not available in practice.
•  In the case of the first instance also there was violation of rights provided in the Constitution. But it was challenged in the court. As a result, workers could get what was due to them in the form of their rightful wages. The constitutional guarantee of the right against exploitation ensured justice to these workers.

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.

FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION

• During our freedom struggle, the leaders of the freedom 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 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 two opinions on the inclusion and protection of rights in the Constitution.
• The Constitution listed the rights that would be specially protected and called them ‘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 so important that the Constitution itself ensures that they are not violated by the government.
• Fundamental Rights are different from other rights available to us. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country.
• Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself.
• Besides this, no organ of the government can act in a manner that violates them.
• Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.
• However, fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.

RIGHT TO EQUALITY

• Right to equality tries to do away with discriminations based on caste, gender, etc.
• 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 the basis of caste, creed, colour, sex, religion, or place of birth.
• It also prohibits any discrimination in public employment on any of the above mentioned basis. This right is very important because our society did not practice equal access in the past. The practice of untouchability is one of the crudest manifestations of inequality. This has been abolished under the right to equality.
• The same right also provides that the state shall confer no title on a person except those who excel themselves in military or academic field
• . Thus right to equality strives to make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens.
• Preamble mentions two things about equality: equality of status and equality of opportunity.
• Equality of opportunity means that all sections of the society enjoy equal opportunities. But in a society where there are various kinds of social inequalities, what does equal opportunity mean?
• The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.
• You may have heard about ‘reservations’ in jobs, and in admissions. You would have wondered why there are reservations if we follow the principle of equality. In fact Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of right to equality. If you see the spirit of the Constitution, this is required for the fulfilment of the right to equality of opportunity.

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.

RIGHT TO FREEDOM

Article 21: Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.

• 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.

Right to life and personal liberty

• The foremost right among rights to freedom is the right to life and personal liberty.
• No citizen can be denied his or her life except by procedure as laid down under the law. Similarly no one can be denied his/her personal liberty.
• That means no one can be arrested without being told the grounds for such an arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also, it is mandatory for the police to take that person to the nearest magistrate within 24 hours. The magistrate, who is not part of the police, will decide whether the arrest is justified or not.
• 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.
• The court has held that 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.

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 permission. However, if the people are aware and vigilant in regard to their rights and choose to protest against such acts of administration such misuse becomes rare.
• In the Constituent Assembly itself, some members had expressed their dissatisfaction about restrictions on rights.

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:

1. no person would be punished for the 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

• In our country there are millions of people who are underprivileged and deprived. They may be subjected to exploitation by their fellow human beings. One such form of exploitation in our country has been begar or forced labour without payment.
• Another closely related form of exploitation is buying and selling of human beings and using them as slaves.
• Both of these are prohibited under the Constitution.
• Forced labour was imposed by landlords, money lenders and other wealthy persons in the past.
• 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 like factories and mines.
• With child labour being made illegal and right to education becoming a fundamental right for children, this right against exploitation has become more meaningful.

RIGHT TO FREEDOM OF RELIGION

• According to our Constitution, everyone enjoys the right to follow the religion of his or her choice. This freedom is considered as a hallmark of democracy.
• Historically, there were rulers and emperors in different parts of the world who did not allow residents of their countries to enjoy the right to freedom of religion. Persons following a religion different from that of the ruler were either persecuted or forced to convert to the official religion of the rulers.
• Therefore, democracy has always incorporated the freedom to follow the 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 also includes the freedom of conscience. This means that a person may choose any religion or may choose not to follow any religion.
• Freedom of religion 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 in order to protect public order, morality and health. This means that the freedom of religion is not an unlimited right.
• The government can interfere in religious matters for rooting out certain social evils. For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice.
• Such restrictions cannot be opposed in the name of interference in right to freedom of religion.
• The limitations on the right to freedom of religion always produce tensions between followers of various religions and the government.
• When the government seeks to restrict some activities of any religious group, people of that religion feel that this is interference in their religion.
• Freedom of religion becomes a matter of political controversy for yet another reason. The Constitution has guaranteed the right to propagate one’s religion. This includes persuading people to convert from one religion to another.
• However, some people resent conversions on the ground that 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.

Equality of all religions

• Being a country which is home to several religions, it is necessary that the government must extend equal treatment to different religions.
• Negatively, it means that government will not favour any particular religion. India does not have any official religion.
• We don’t have to belong to any particular religion in order to be a prime minister or president or judge or any other public official.
• We have also seen that under the right to equality, there is a guarantee that government will not discriminate on the basis of 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.

CULTURAL AND EDUCATIONAL RIGHTS

• When we talk of the Indian society, the image of diversity comes before our minds. India is not made up of a monolithic society. We are a society that has vast diversity.
• In such a society that is full of diversity, there would be social sections which are small in numbers compared to some other groups. If a group is in minority, will it have to adopt the culture of the majority?
• Our Constitution believes that diversity is our strength. Therefore, one of the fundamental rights is the right of the 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 common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section.
• Such communities have a culture, language and a script of their own, and have the right to conserve and develop these.
• All minorities, religious or linguistic, can set up their own 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 institution on the basis that it is under the management of minority community.

RIGHT TO CONSTITUTIONAL REMEDIES

• One would agree that our Constitution contains a very impressive list of Fundamental Rights. But merely writing down a list of rights is not enough. There has to be a way through which they could be realised in practice and defended against any attack on these rights.
• Right to constitutional remedies is the means through which this is to be achieved.
• 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 and the High Courts 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: A writ of habeas corpus 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 arrest are not lawful or satisfactory.
• Mandamus: This writ is issued when the court finds that a particular office holder 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 a 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 office holder.
• 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.
• Apart from the judiciary, many other mechanisms have been created in later years for the protection of rights.
• You may have heard about the 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 has also been established by law to protect the fundamental and other kinds of rights.

Human Rights Commission

• The real test of the rights given by any constitution is in their actual implementation. The poor, illiterate and the deprived sections of the society must be able to exercise their rights.
• Independent organisations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic Rights (PUDR) have been working as watchdogs against the violations of rights.
• In this background, the government has established in 2000 an institution, the National Human Rights Commission.
• The National Human Rights Commission (NHRC) is composed of a former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights.
• The 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; visit to jails to study the condition of the inmates; undertaking and promoting research in the field of human rights etc.
• The commission receives complaints in thousands every year. These relate to custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to women etc.
• Its most significant intervention has been on disappeared youth in Punjab and investigation and trial of Gujarat riot cases where its intervention proved effective.
• The commission does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.