Chapter Two RIGHTS IN THE INDIAN...

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Indian Constitution at Work

Chapter Two

RIGHTS IN THE INDIANCONSTITUTION

INTRODUCTION

A constitution is not only about the composition of the various organs ofgovernment 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 governmentand ensures a democratic system in which all persons enjoy certain rights. In thischapter, we shall study the Fundamental Rights contained in the IndianConstitution. Part three of the Constitution of India lists the FundamentalRights and also mentions the limits on these rights. In the past fifty years, thescope of rights has changed and in some respects, expanded. After studying thischapter, 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;andwhat is the difference between the Fundamental Rights and the DirectivePrinciples of State Policy.

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Chapter 2: Rights in the Indian Constitution

THE IMPORTANCE OF RIGHTS

In 1982 during the construction work for Asian Games thegovernment engaged a few contractors. These contractors employeda large number of very poor construction workers from differentparts of the country to build the flyovers and stadiums. These workerswere kept in poor working conditions and were paid less than theminimum wages decided by the government.

A team of social scientists studied their poor condition andpetitioned the Supreme Court. They argued that employing a personto work for less than the minimum prescribed wage amounts tobegar or forced labour, which is a violation of the Fundamental Rightagainst exploitation. The court accepted this plea and directed thegovernment to ensure that thousands of workers get the prescribedwages for their work.

Machal Lalung was 23 when he was arrested. A resident ofChuburi village of Morigaon district of Assam, Machal was chargedof causing grievous injuries. He was found mentally too unstable tostand trial and was sent as under trial to Lok Priya Gopinath BordoloiMental Hospital in Tejpur for treatment.

Machal was treated successfully and doctors wrote twice to jailauthorities in 1967 and 1996 that he was fit to stand trial. But noone paid any attention. Machal Lalung remained in “judicial custody.’’

Machal Lalung was released in July 2005. He was 77 then. Hespent 54 years under custody during which his case never came upfor hearing. He was freed when a team appointed by the NationalHuman Rights Commission intervened after an inspection ofundertrials in the State.

Machal’s entire life was wasted because a proper trialagainst him never took place. Our Constitution gives everycitizen the right to ‘life and liberty’: this means that everycitizen must also have the right to fair and speedy trial.Machal’s case shows what happens when rights grantedby the Constitution are not available in practice.

What if Machal was a richWhat if Machal was a richWhat if Machal was a richWhat if Machal was a richWhat if Machal was a richand powerful man? Whatand powerful man? Whatand powerful man? Whatand powerful man? Whatand powerful man? Whatif those working with theif those working with theif those working with theif those working with theif those working with theconstruction contractorconstruction contractorconstruction contractorconstruction contractorconstruction contractorwere engineers? Wouldwere engineers? Wouldwere engineers? Wouldwere engineers? Wouldwere engineers? Wouldtheir rights have beentheir rights have beentheir rights have beentheir rights have beentheir rights have beenviolated?violated?violated?violated?violated?

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In the case of the first instance also there was violationof rights provided in the Constitution. But it waschallenged in the court. As a result, workers could getwhat was due to them in the form of their rightful wages.The constitutional guarantee of the right againstexploitation ensured justice to these workers.

Bill of RightsBoth these examples show the importance of having rightsand of the actual implementation of these rights. Ademocracy must ensure that individuals have certainrights and that the government will always recognise theserights. Therefore it is often a practice in most democraticcountries to list the rights of the citizens in the constitutionitself. Such a list of rights mentioned and protected bythe constitution is called the ‘bill of rights’. A bill of rightsprohibits government from thus acting against the rightsof the individuals and ensures a remedy in case there isviolation of these rights.

From whom does a constitution protect the rights ofthe individual? The rights of a person may be threatenedby another person or private organisation. In such asituation, the individual would need the protection of thegovernment. So, it is necessary that the government isbound to protect the rights of the individual. On the otherhand, the organs of the government (the legislature,executive, bureaucracy or even the judiciary), in the courseof their functioning, may violate the rights of the person.

FUNDAMENTAL RIGHTS IN THE INDIANCONSTITUTIONDuring our freedom struggle, the leaders of the freedommovement had realised the importance of rights anddemanded that the British rulers should respect rights ofthe people. The Motilal Nehru committee had demandeda bill of rights as far back as in 1928. It was therefore,natural that when India became independent and theConstitution was being prepared, there were no

I get it! The bill of rightsI get it! The bill of rightsI get it! The bill of rightsI get it! The bill of rightsI get it! The bill of rightsis like a warrantee cardis like a warrantee cardis like a warrantee cardis like a warrantee cardis like a warrantee cardthat we get when wethat we get when wethat we get when wethat we get when wethat we get when wepurchase a TV or a fan.purchase a TV or a fan.purchase a TV or a fan.purchase a TV or a fan.purchase a TV or a fan.Isn’t it?Isn’t it?Isn’t it?Isn’t it?Isn’t it?

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Bill of rights in the South AfricanConstitution

The South African Constitution wasinaugurated in December 1996. Itscreation and promulgation tookplace at a time when South Africastill faced the threat of a civil warafter the dissolution of the Apartheidgovernment. The South AfricanConstitution says that its “Bill ofRights is a cornerstone of democracyin South Africa”. It forbidsdiscrimination on the grounds of“race, gender, pregnancy, maritalstatus, ethnic or social origin,colour, age, disability, religion,conscience, belief, culture, languageand birth”. It grants perhaps themost extensive range of rights to thecitizens. A special constitutionalcourt enforces the rights enshrinedin the constitution.

Some of the Rights included inthe constitution of South Africainclude:

Right to DignityRight to PrivacyRight to fair labour practicesRight to healthy environmentand right to protection ofenvironmentRight to adequate housingRight to health care, food, waterand social securityChildren’s rightsRight to basic and highereducationRight of cultural, religious andlinguistic communitiesRight to information

two opinions on the inclusionand protection of rights in theConstitution. The Constitutionlisted the rights that would bespecially protected and calledthem ‘fundamental rights’.

The word fundamentalsuggests that these rights are soimportant that the Constitutionhas separately listed them andmade special provisions for theirprotection. The FundamentalRights are so important that theConstitution itself ensures thatthey are not violated by thegovernment.

Fundamental Rights aredifferent from other rightsavailable to us. While ordinarylegal rights are protected andenforced by ordinary law,Fundamental Rights areprotected and guaranteed bythe constitution of the country.Ordinary rights may be changedby the legislature by ordinaryprocess of law making, but afundamental right may only bechanged by amending theConstitution itself. Besides this,no organ of the government canact in a manner that violatesthem. As we shall study belowin this chapter, judiciary has thepowers and responsibility toprotect the fundamental rightsfrom violations by actions of the

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government. Executive as well as legislative actions can be declaredillegal by the judiciary if these violate the fundamental rights orrestrict them in an unreasonable manner. However, fundamentalrights are not absolute or unlimited rights. Government can putreasonable restrictions on the exercise of our fundamental rights.

RIGHT TO EQUALITY

Consider the following two situations. These are imaginary situations.But similar things do happen and can happen. Do you think theyinvolve violation of fundamental rights?

Swadesh Kumar is visiting his village. He is accompanied by one of hisfriends. They decided to have a cup of tea at the village roadside hotel. Theshopkeeper knew Swadesh Kumar but asked the name of his friend to knowhis caste. After this the shopkeeper served tea to Swadesh Kumar in a nicemug 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 theywould no longer read the news on screen. They are all women. The reasongiven is that they are above the age of forty-five. Two male newsreadersabove the same age are not barred from presenting the news.

Check your progressCompare the Fundamental Rights in the Indian Constitutionwith the Bill of Rights in the South African Constitution. Makea list of rights that are:

Common to both the constitutionsAvailable in South Africa but not in IndiaClearly granted in South Africa but implicit in theIndian Constitution

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CONSTITUTIONOF

INDIAPART III: FUNDAMENTAL

RIGHTS

Rigsht to Equality

√ Equality before law√ Equal protection of

laws√ Prohibition on

discrimination onground of religion

√ Equal access toshops, bathingghats, hotels etc.

√ Equality ofopportunity inemployment

√ Abolition of titles√ Abolition of

untouchability

Right to liberty andPersonal freedomsRight to:

√ speech and expression√ Assemble peacefully√ Form association√ Move freely

throughout theterritory of India

√ Reside and settle inany part of IndiaPractice anyprofession or to carryon any occupation,trade or business.

√ Right to life andliberty;

√ Rights of the accusedand convicts

Right againstexploitation

√ Prohibition offorced labour;

√ Prohibition ofemployment ofchildren inhazardous jobs

Right to freedom ofreligion

√ Freedom ofconscience andprofession;

√ Freedom to managereligious affairs;freedom to givereligious instructionsin certaininstitutions

Cultural andeducational Rightsof minority groups

√ Protection oflanguage, cultureof minorities;

√ Right ofminorities toestablisheducationalinstitutions

Right to Constitutional remedy

√ Right to move the courtsfor issuance of writs

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Article 16 (4): Nothing in this article shallprevent the State from making anyprovision for the reservation ofappointments or posts in favour of anybackward class of citizens which, in theopinion of the State, is not adequatelyrepresented in the services under theState.

These are examples of clear discrimination. In oneinstance the discrimination is based on caste and inanother it is based on gender. Do you think that suchdiscrimination is justified?

Right to equality tries to do away with such and otherdiscriminations. It provides for equal access to publicplaces like shops, hotels, places of entertainment, wells,bathing ghats and places of worship. There cannot beany discrimination in this access on the basis of caste,creed, colour, sex, religion, or place of birth. It alsoprohibits any discrimination in public employment on anyof the above mentioned basis. This right is very importantbecause our society did not practice equal access in thepast.

The practice of untouchability is one of the crudestmanifestations of inequality. This has been abolishedunder the right to equality. The same right also providesthat the state shall confer no title on a person except thosewho excel themselves in military or academic field. Thusright to equality strives to make India a true democracyby ensuring a sense of equality of dignity and statusamong all its citizens.

Have you read the Preamble to our Constitution?How does it describe equality? You will find that thePreamble mentions two things about equality: equality

Do such things reallyDo such things reallyDo such things reallyDo such things reallyDo such things reallyhappen in our country? Orhappen in our country? Orhappen in our country? Orhappen in our country? Orhappen in our country? Orare these purely imaginary?are these purely imaginary?are these purely imaginary?are these purely imaginary?are these purely imaginary?

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of status and equality of opportunity. Equality of opportunity meansthat all sections of the society enjoy equal opportunities. But in asociety where there are various kinds of social inequalities, what doesequal opportunity mean? The Constitution clarifies that thegovernment can implement special schemes and measures forimproving the conditions of certain sections of society: children,women, and the socially and educationally backward classes. Youmay have heard about ‘reservations’ in jobs, and in admissions. Youwould have wondered why there are reservations if we follow theprinciple of equality. In fact Article 16(4) of the constitution explicitlyclarifies that a policy like reservation will not be seen as a violation ofright to equality. If you see the spirit of the Constitution, this isrequired for the fulfilment of the right to equality of opportunity.

YOU ARE THE JUDGE

You have received a post card fromHadibandhu, who identifies himself as a“member of the dalit community” in Puridistrict in Orissa. Men from this communityrefused to follow a custom that requiredthem to wash the feet of the groom andguests of the ‘upper caste’ during marriageceremonies. In revenge, four women fromthis community were beaten up andanother was paraded naked. The post cardwriter says “Our children are educated andthey are not willing to do the customary job of washing the feet ofupper caste men, clear the left-overs after the marriage feast andwash the utensils.”Assuming that the facts given above are correct, you have to decide:Does this case involve violation of Fundamental Rights?What would you order the government to do in this case?

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Does it mean that in someDoes it mean that in someDoes it mean that in someDoes it mean that in someDoes it mean that in somecases someone’s life can becases someone’s life can becases someone’s life can becases someone’s life can becases someone’s life can betaken away by law? Thattaken away by law? Thattaken away by law? Thattaken away by law? Thattaken away by law? Thatsounds strange. Can yousounds strange. Can yousounds strange. Can yousounds strange. Can yousounds strange. Can youthink of an example?think of an example?think of an example?think of an example?think of an example?

RIGHT TO FREEDOM

Equality and freedom or liberty, are the two rights thatare most essential to a democracy. It is not possible tothink of the one without thinking of the other. Libertymeans freedom of thought, expression and action. Howeverit does not mean freedom to do anything that one desiresor likes. If that were to be permitted then a large numberof people will not be able to enjoy their freedom. Therefore,freedoms are defined in such a manner that every personwill enjoy her freedom without threatening freedom ofothers and without endangering the law and ordersituation.

Right to life and personal libertyThe foremost right among rights to freedom is the right tolife and personal liberty. No citizen can be denied his orher 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 toldthe grounds for such an arrest. If arrested, the personhas the right to defend himself by a lawyer of his choice.Also, it is mandatory for the police to take that person tothe nearest magistrate within 24 hours. The magistrate,who is not part of the police, will decide whether the arrestis justified or not.

This right is not just confined to a guarantee againsttaking away of an individual’s life but has widerapplication. Various judgments of Supreme Court haveexpanded the scope of this right. The Supreme Court

Article 21: Protection of life and personalliberty—No person shall be deprived of hislife or personal liberty except accordingto procedure established by law.

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has ruled that this right also includes right to live with human dignity,free from exploitation. The court has held that right to shelter andlivelihood is also included in the right to life because no person canlive without the means of living, that is, the means of livelihood.

Preventive detentionOrdinarily, a person would be arrested after he or she has reportedlycommitted some offence. However there are exceptions to this.Sometimes a person can be arrested simply out of an apprehensionthat he or she is likely to engage in unlawful activity and imprisonedfor some time without following the above mentioned procedure. Thisis known as preventive detention. It means that if the governmentfeels that a person can be a threat to law and order or to the peaceand security of the nation, it can detain or arrest that person. Thispreventive detention can be extended only for three months. Afterthree months such a case is brought before an advisory board forreview.

On the face of it, preventive detention looks like an effective toolin the hands of the government to deal with anti-social elements orsubversives. But this provision has often been misused by thegovernment. Many people think that there must be greater safeguardsin this law so that it may not be misused against people for reasonsother than that which are really justified. In fact, there is a cleartension between right to life and personal liberty and the provisionfor preventive detention.

Other freedomsYou can see that under the right to freedom there are some otherrights as well. These rights however are not absolute. Each of theseis subject to restrictions imposed by the government.

For example right to freedom of speech and expression is subjectto restrictions such as public order, peace and morality etc. Freedomto assemble too is to be exercised peacefully and without arms. Thegovernment may impose restrictions in certain areas declaring theassembly of five or more persons as unlawful. Such powers can beeasily misused by the administration. The genuine protest againstan act or policy of government by the people may be denied

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permission. However, if the people are aware and vigilant in regardto their rights and choose to protest against such acts ofadministration such misuse becomes rare. In the ConstituentAssembly itself, some members had expressed their dissatisfactionabout restrictions on rights.

Rights of accusedOur Constitution ensures that persons accused of various offenceswould also get sufficient protection. We often tend to believe thatanyone who is charged with some offence is guilty. However, no one isguilty unless the court has found that person guilty of an offence. It isalso necessary that a person accused of any crime should get adequateopportunity 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 thanonce,no law shall declare any action as illegal from a backdate,andno person shall be asked to give evidence against himself orherself.

I feel that many of these fundamental rightshave been framed from the point of view ofa police Constable… you will find that veryminimum rights have been conceded andare almost invariably followed by a proviso.Almost every article is followed by a provisowhich takes away the right almostcompletely,..…What should be our conception offundamental rights ?....We want toincorporate every one of those rights whichour people want to get.

Somnath Lahiri[CAD, Vol. III, p. 404]

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RIGHT AGAINST EXPLOITATION

In our country there are millions ofpeople who are underprivileged anddeprived. They may be subjected toexploitation by their fellow humanbeings. One such form ofexploitation in our country has beenbegar or forced labour withoutpayment. Another closely relatedform of exploitation is buying andselling of human beings and usingthem as slaves. Both of these areprohibited under the Constitution.Forced labour was imposed bylandlords, money lenders and otherwealthy persons in the past. Someform of bonded labour stillcontinues in the country, speciallyin brick kiln work. It has nowbeen declared a crime and it ispunishable.

Check your progressDo you think that the following situations demandrestrictions on right to freedom? Give reasons to supportyour answer.a. People have assembled for a peace march after

communal riots in the city.b. Dalits are denied entry in a temple. A march is being

organised to forcibly enter the temple.c. Hundreds of tribals armed with their traditional

weapons bows arrows and axes have blocked theroad. They are demanding that the surplus landtaken for an industry be returned to them.

d. A caste panchayat is meeting to decide thepunishment to a young couple for marrying outsidetheir caste.

Name the fundamental rights whoseviolation is depicted in thisphotograph.

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The Constitution also forbids employment of children below theage of 14 years in dangerous jobs like factories and mines. Withchild labour being made illegal and right to education becoming afundamental right for children, this right against exploitation hasbecome more meaningful.

RIGHT TO FREEDOM OF RELIGIONAccording to our Constitution, everyone enjoys the right to followthe religion of his or her choice. This freedom is considered as ahallmark of democracy. Historically, there were rulers and emperorsin different parts of the world who did not allow residents of theircountries to enjoy the right to freedom of religion. Persons followinga religion different from that of the ruler were either persecuted orforced to convert to the official religion of the rulers. Therefore,democracy has always incorporated the freedom to follow the religionof one’s choice as one of its basic principles.

Freedom of faith and worshipIn India, everyone is free to choose a religion and practice that religion.Freedom of religion also includes the freedom of conscience. Thismeans that a person may choose any religion or may choose not tofollow any religion. Freedom of religion includes the freedom toprofess, follow and propagate any religion. Freedom of religion issubject to certain limitations. The government can impose restrictionson the practice of freedom of religion in order to protect public order,morality and health. This means that the freedom of religion is notan unlimited right. The government can interfere in religious mattersfor rooting out certain social evils. For example in the past, thegovernment has taken steps banning practices like sati, bigamy orhuman sacrifice. Such restrictions cannot be opposed in the nameof interference in right to freedom of religion.

The limitations on the right to freedom of religion always producetensions between followers of various religions and the government.When the government seeks to restrict some activities of any religiousgroup, people of that religion feel that this is interference in theirreligion.

Freedom of religion becomes a matter of political controversy foryet another reason. The Constitution has guaranteed the rightto propagate one’s religion. This includes persuading people to

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convert from one religion to another. However, some people resentconversions on the ground that these are based on intimidation orinducement. The Constitution does not allow forcible conversions. Itonly gives us the right to spread information about our religion andthus attract others to it.

Equality of all religionsBeing a country which is home to several religions, it is necessarythat the government must extend equal treatment to differentreligions. Negatively, it means that government will not favour anyparticular religion. India does not have any official religion. We don’thave to belong to any particular religion in order to be a primeminister or president or judge or any other public official. We havealso seen that under the right to equality, there is a guarantee thatgovernment will not discriminate on the basis of religion in givingemployment. The institutions run by the state will not preach anyreligion or give religious education nor will they favour persons ofany religion. The objective of these provisions is to sustain andnurture the principle of secularism.

ActivityMake a list of public religious activities that takeplace in your village or city.Which of these involve an exercise of right to religiousfreedom?Discuss what could have happened if this right wasnot available to people in your locality.

CULTURAL AND EDUCATIONAL RIGHTSWhen we talk of the Indian society, the image of diversity comes beforeour minds. India is not made up of a monolithic society. We are asociety that has vast diversity. In such a society that is full of diversity,there would be social sections which are small in numbers comparedto some other groups. If a group is in minority, will it have to adoptthe culture of the majority?Our Constitution believes that diversity is our strength. Therefore,one of the fundamental rights is the right of the minorities tomaintain their culture. This minority status is not dependent only

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upon religion. Linguistic and cultural minorities are also includedin this provision. Minorities are groups that have common languageor religion and in a particular part of the country or in the countryas a whole, they are outnumbered by some other social section. Suchcommunities have a culture, language and a script of their own, andhave the right to conserve and develop these.

All minorities, religious or linguistic, can set up their owneducational institutions. By doing so, they can preserve and developtheir own culture. The government will not, while granting aid toeducational institutions, discriminate against any educationalinstitution on the basis that it is under the management of minoritycommunity.

RIGHT TO CONSTITUTIONAL REMEDIES

One would agree that our Constitution contains a very impressivelist of Fundamental Rights. But merely writing down a list of rightsis not enough. There has to be a way through which they could berealised in practice and defended against any attack on these rights.

A heavy responsibility would be cast onthe majority to see that in fact theminorities feel secure. …the only safetyfor the minorities lies in a secular State.It pays them to be nationalists …..Themajority community should not boastof their national outlook. …….Theyshould try to place themselves in theposition of the minorities and try toappreciate their fears. All demands forsafeguards ……are the products ofthose fears that the minorities have intheir minds, …. ..as regards theirlanguage, their script and also aboutthe services.

Sardar Hukam Singh[CAD VIII p. 322,]

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Right to constitutional remedies is the means throughwhich this is to be achieved. Dr. Ambedkar consideredthe right to constitutional remedies as ‘heart and soul ofthe constitution’. It is so because this right gives a citizenthe right to approach a High Court or the Supreme Courtto get any of the fundamental rights restored in case oftheir violation. The Supreme Court and the High Courtscan issue orders and give directives to the government forthe enforcement of rights.The courts can issue various special orders known aswrits.

Habeas corpus: A writ of habeas corpus meansthat the court orders that the arrested personshould be presented before it. It can also order toset free an arrested person if the manner orgrounds of arrest are not lawful or satisfactory.Mandamus: This writ is issued when the courtfinds that a particular office holder is not doinglegal duty and thereby is infringing on the right ofan individual.Prohibition: This writ is issued by a higher court(High Court or Supreme Court) when a lower courthas considered a case going beyond its jurisdiction.Quo Warranto: If the court finds that a person isholding office but is not entitled to hold that office,it issues the writ of quo warranto and restricts thatperson from acting as an office holder.Certiorari: Under this writ, the court orders alower court or another authority to transfer amatter pending before it to the higher authority orcourt.

Apart from the judiciary, many other mechanismshave been created in later years for the protection ofrights. You may have heard about the NationalCommission on Minorities, the National Commission onWomen, the National Commission on Scheduled Castes,

I am in minority in myI am in minority in myI am in minority in myI am in minority in myI am in minority in mylocality but majority inlocality but majority inlocality but majority inlocality but majority inlocality but majority inthe town, minority if youthe town, minority if youthe town, minority if youthe town, minority if youthe town, minority if youlook at my language butlook at my language butlook at my language butlook at my language butlook at my language butmajority if you go by mymajority if you go by mymajority if you go by mymajority if you go by mymajority if you go by myreligion… Aren’t we allreligion… Aren’t we allreligion… Aren’t we allreligion… Aren’t we allreligion… Aren’t we allminorities?minorities?minorities?minorities?minorities?

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etc. These institutions protect the rights of women, minorities orDalits. Besides, the National Human Rights Commission has alsobeen established by law to protect the fundamental and other kindsof rights.

Human Rights CommissionThe real test of the rights given by any constitution is intheir actual implementation. The poor, illiterate and thedeprived sections of the society must be able to exercisetheir rights. Independent organisations like the People’sUnion for Civil Liberties (PUCL) or People’s Union forDemocratic Rights (PUDR) have been working aswatchdogs against the violations of rights. In thisbackground, the government has established in 2000 aninstitution, the National Human Rights Commission.

The National Human Rights Commission (NHRC) iscomposed of a former chief justice of the Supreme Courtof India, a former judge of the Supreme Court, a formerchief justice of a High Court and two other members whohave knowledge and practical experience in mattersrelating to human rights.

The commission’s functions include inquiry at its owninitiative or on a petition presented to it by a victim intocomplaint of violation of human rights; visit to jails tostudy the condition of the inmates; undertaking andpromoting research in the field of human rights etc.

The commission receives complaints in thousandsevery year. These relate to custodial death, custodial rape,disappearances, police excesses, failure in taking action,indignity to women etc. Its most significant interventionhas been on disappeared youth in Punjab andinvestigation and trial of Gujarat riot cases where itsintervention proved effective.

The commission does not have the power ofprosecution. It can merely make recommendations to thegovernment or recommend to the courts to initiateproceedings based on the inquiry that it conducts.

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DIRECTIVE PRINCIPLES OF STATE POLICY

The makers of our Constitution knew that independent India wasgoing to face many challenges. Foremost among these was thechallenge to bring about equality and well-being of all citizens. Theyalso thought that certain policy direction was required for handlingthese problems. At the same time, the Constitution did not wantfuture governments to be bound by certain policy decisions.

Therefore, some guidelines were incorporated in the Constitutionbut they were not made legally enforceable: this means that if agovernment did not implement a particular guideline, we cannot goto the court asking the court to instruct the government to implementthat policy. Thus, these guidelines are ‘non-justiciable’ i.e., parts ofthe Constitution that cannot be enforced by the judiciary. Those whoframed our Constitution thought that the moral force behind theseguidelines would ensure that the government would take themseriously. Besides, they expected that the people would also holdthe governments responsible for implementing these directives. So,a separate list of policy guidelines is included in the Constitution.The list of these guidelines is called the Directive Principles of StatePolicy.

What do the Directive Principles contain?The chapter on Directive Principles lists mainly three things:

the goals and objectives that we as a society should adopt;certain rights that individuals should enjoy apart from theFundamental Rights; andcertain policies that the government should adopt.

You may get some idea of the vision of makers of our Constitutionby looking at some of the Directive Principles shown below.

The governments from time to time tried to give effect to someDirective Principles of State Policy. They passed several zamindariabolition bills, nationalised banks, enacted numerous factory laws,fixed minimum wages, cottage and small industries were promotedand provisions for reservation for the uplift of the scheduled castesand scheduled tribes were made. Such efforts to give effect to the

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Directive Principles include the right to education, formation ofpanchayati raj institutions all over the country, partial right to workunder employment guarantee programme and the mid-day mealscheme etc.

Check your progressIt is estimated that there are about three million urban homelessin India. Night shelters are not available for more than five percent of this population. Hundreds of these old, sick homelesspeople are killed by cold wave during winter. They cannot haveration and voting cards in the absence of any ‘proof of residence’.Without these documents they also cannot avail governmenthelp as needy patients. A large number of these homeless peopleare casual workers, who earn very low wages. They travel tothe city in search of work from different parts of the country.

Use these facts to write a petition to the Supreme Court ofIndia under the Right to Constitutional Remedies. Your petitionshould mention:a. What Fundamental Rights are being denied to the homeless

in their everyday life?b. What kind of order would you request the Supreme Court

to issue?

Fundamental Duties of citizensIn 1976, the 42nd amendment to the Constitution waspassed. Among other things, this amendment inserteda list of Fundamental Duties of Citizens. In all, ten dutieswere enumerated. However, the Constitution does notsay anything about enforcing these duties.As citizens, we must abide by the Constitution, defendour country, promote harmony among all citizens, protectthe environment.However, it must be noted that our Constitution doesnot make the enjoyment of rights dependent orconditional upon fulfilment of duties. In this sense, theinclusion of fundamental duties has not changed thestatus of our fundamental rights.

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RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND

DIRECTIVE PRINCIPLES

It is possible to see both Fundamental Rights and Directive Principlesas complementary to each other. Fundamental Rights restrainthe government from doing certain things while Directive

Goals

Welfare of the people; Social, economic andpolitical justice;

Raising the standard ofliving; equitabledistribution of resources;

promotion of internationalpeace

Non-justiciable rights

Adequate livelihoodequal pay for equal work (for menand women)

Right against economicExploitation.

Right to work;

Right of children to free andcompulsory education

Policies

Uniform civil code;Prohibition ofconsumption ofalcoholic liquor;

Promotion of cottageindustries;

Prevention of slaughter ofuseful cattle;

Promotion of villagepanchayats.

DIRECTIVE PRINCIPLES

Tell me what is the pointTell me what is the pointTell me what is the pointTell me what is the pointTell me what is the pointof saying nice things inof saying nice things inof saying nice things inof saying nice things inof saying nice things inthe Constitution if thesethe Constitution if thesethe Constitution if thesethe Constitution if thesethe Constitution if thesecannot be implemented bycannot be implemented bycannot be implemented bycannot be implemented bycannot be implemented byany court?any court?any court?any court?any court?

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Principles exhort the government to do certain things. FundamentalRights mainly protect the rights of individuals while directiveprinciples ensure the well-being of the entire society.

However, at times, when government intends to implementDirective Principles of State Policy, it can come in conflict with theFundamental Rights of the citizen.

This problem arose when the government sought to pass laws toabolish zamindari system. These measures were opposed on theground that they violated right to property. However, keeping in mindthe societal needs that are greater than the individual interests, thegovernment amended the Constitution to give effect to the DirectivePrinciples of State Policy. This led to a long legal battle. The executiveand the judiciary took different positions. The government claimedthat rights can be abridged for giving effect to Directive Principles.This argument assumed that rights were a hindrance to welfare ofthe people. On the other hand, the court held the view thatFundamental Rights were so important and sacred that they cannotbe limited even for purposes of implementing Directive Principles.

Right to PropertyBehind the controversy about the relationship between rightsand directive principles, there was one important reason: inthe Constitution, originally, there was a fundamental right to‘acquire, possess and maintain’ property. But the Constitutionmade it clear that property could be taken away by thegovernment for public welfare. Since 1950, government mademany laws that limited this right to property. This right was atthe centre of the long debate over the relationship between rightsand directive principles. Finally, in 1973, the Supreme Courtgave a decision that the right to property was not part of thebasic structure of the Constitution and therefore, parliamenthad power to abridge this right by an amendment. In 1978, the44th amendment to the Constitution removed the right to propertyfrom the list of Fundamental Rights and converted it into a simplelegal right.

What difference, do you think, this change of status makesto the right to property?

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This generated another complicated debate. This related to theamendment of the Constitution. The government was saying thatParliament can amend any part of the Constitution. The court wassaying that Parliament cannot make an amendment that violatedFundamental Rights. This controversy was settled by an importantdecision of the Supreme Court in Kesavananda Bharati case. In thiscase, the court said that there are certain basic features of theConstitution and these cannot be changed by Parliament. We shalldiscuss this in greater detail in Chapter 9 on ‘Constitution as a LivingDocument’.

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Conclusion

In the writings of Jotirao Phuley (1827-1890), a radical socialreformer from Maharashtra, we find one of the earliestexpressions of the view that rights include both freedom andequality. During the national movement, this idea of rights wasfurther sharpened and expanded to constitutional rights. OurConstitution reflected this long tradition and listed thefundamental rights. Since 1950, the judiciary has functionedas an important protector of rights.

Judicial interpretations have expanded the scope of rightsin many respects. The government and administration of ourcountry function within this overall framework. Rights enforcelimitations on the functioning of the government and ensuredemocratic governance of the country.

Check your progressRead the main points of the Bill of Rights in the SouthAfrican Constitution and the Directive Principles in India.Which are the common points in the two lists?Why did the South African Constitution put these in theBill of Rights?If you were writing the constitution for a new country,what would you suggest?

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Exercises

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.

2. Which of the following is the best description of Fundamental Rights?a) All the rights an individual should have.b) All the rights given to citizens by law.c) The rights given and protected by the Constitution.d) The rights given by the Constitution that cannot ever be

restricted.

3. Read the following situations. Which Fundamental Right is beingused or violated in each case and how?a) Overweight male cabin crew are allowed to get promotion in the

national airlines but their women colleagues who gain weightare penalised.

b) A director makes a documentary film that criticises the policiesof the government.

c) People displaced by a big dam take out a rally demandingrehabilitation.

d) Andhra society runs Telugu medium schools outside AndhraPradesh.

4. Which of the following is a correct interpretation of the Culturaland Educational Rights?a) Only children belonging to the minority group that has opened

educational institution can study there.b) Government schools must ensure that children of the minority

group will be introduced to their belief and culture.c) Linguistic and religious minorities can open schools for their

children and keep it reserved for them.d) Linguistic and religious minorities can demand that their

children must not study in any educational institution exceptthose managed by their own community.

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5. Which of the following is a violation of Fundamental Rights andwhy?a) Not paying minimum wagesb) Banning of a bookc) Banning of loudspeakers after 9 pm.d) Making a speech

6. An activist working among the poor says that the poor don’t needFundamental Rights. What they need are Directive Principles to bemade legally binding. Do you agree with this? Give your reasons.

7. Several reports show that caste groups previously associated withscavenging are forced to continue in this job. Those in positions ofauthority refuse to give them any other job. Their children arediscouraged from pursuing education. Which of their FundamentalRights are being violated in this instance?

8. A petition by a human rights group drew attention of the court tothe condition of starvation and hunger in the country. Over fivecrore tonnes of food grains was stored in the godowns of the FoodCorporation of India. Research shows that a large number of rationcardholders do not know about the quantity of food grains they canpurchase from fair price shops. It requested the court to order thegovernment to improve its public distribution system.a. Which different rights does this case involve? How are these

rights interlinked?b. Should these rights form part of the right to life?

9. Read the statement by Somnath Lahiri in the Constitutent Assemblyquoted in this chapter. Do you agree with him? If yes, give instancesto prove it. If not, give arguments against his position.

10. Which of the Fundamental Rights is in your opinion the mostimportant right? Summarise its provisions and give arguments toshow why it is most important.

Chapter Two RIGHTS IN THE INDIAN...

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