Human rights in India is an issue complicated by the country's large size & population, widespread poverty, lack of proper education & its diverse culture, even though being the world's largest sovereign, secular, democratic republic. The Constitution of India provides for Fundamental rights, which include freedom of religion. Clauses also provide for freedom of speech, as well as separation of executive and judiciary and freedom of movement within the country and abroad. The country also has an independent judiciary and well as bodies to look into issues of human rights.
The 2016 report of Human Rights Watch accepts the above-mentioned faculties but goes to state that India has "serious human rights concerns. Civil society groups face harassment and government critics face intimidation and lawsuits. Free speech has come under attack both from the state and by interest groups. Muslim and Christian minorities accuse authorities of not doing enough to protect their rights. But in the recent years, more emphasis is given to minority rights & freedom of speech.The government is yet to repeal laws that grant public officials and security forces immunity from prosecution for abuses."
Chronology of events regarding human rights in India
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|1950||The Constitution of India establishes a sovereign democratic republic with universal adult franchise. Part 3 of the Constitution contains a Bill of Fundamental Rights enforceable by the Supreme Court and the High Courts. It also provides for reservations for previously disadvantaged sections in education, employment and political representation.|
|1952||Criminal Tribes Acts repealed by government, former "criminal tribes" categorized as "denotified" and Habitual Offenders Act (1952) enacted.|
|1955||Reform of family law concerning Hindus gives more rights to Hindu women. |
Untouchability offenses Act (1955).
|1958||Armed Forces (Special Powers) Act, 1958|
|1973||Supreme Court of India rules in Kesavananda Bharati case that the basic structure of the Constitution (including many fundamental rights) is unalterable by a constitutional amendment.|
|1975-1977||State of Emergency in India|
extensive rights violations take place.
|1978||SC rules in Menaka Gandhi v. Union of India that the right to life under Article 21 of the Constitution cannot be suspended even in an emergency.|
|1978||Jammu and Kashmir Public Safety Act, 1978|
|1984||Operation Blue Star and the subsequent 1984 Anti-Sikh riots|
|1984||2006 Extrajudicial disappearances in Punjab by the police|
|1985-1986||The Shah Bano case, where the Supreme Court recognised the Muslim woman's right to maintenance upon divorce, sparks protests from Muslim clergy. To nullify the decision of the Supreme Court, the Rajiv Gandhi government enacted The Muslim Women (Protection of Rights on Divorce) Act 1986|
|1987||Hashimpura massacre during communal riots in Meerut.|
|1989||Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is passed.|
|1989–present||Kashmiri insurgency sees ethnic cleansing of Kashmiri Pandits, desecrating Hindu temples, killing of Hindus and Sikhs, and abductions of foreign tourists and government functionaries. (See: Ethnic cleansing of Kashmiri Hindus)|
|1992||A constitutional amendment establishes Local Self-Government (Panchayati Raj) as a third tier of governance at the village level, with one-third of the seats reserved for women. Reservations were provided for scheduled castes and tribes as well.|
|1992||Demolition of the Babri Masjid occurred after a political rally at the site turned violent.|
|1993||National Human Rights Commission is established under the Protection of Human Rights Act.|
|2001||Supreme Court passes extensive orders to implement the right to food.|
|2002||2002 Gujarat riots which claimed at least thousand lives of Muslims and Hindus.|
|2005||A powerful Right to Information Act is passed to give citizen's access to information held by public authorities.|
|2005||National Rural Employment Guarantee Act (NREGA) guarantees universal right to employment.|
|2006||Supreme Court orders police reforms in response to the poor human rights record of Indian police.|
|2009||Delhi High Court declares that Section 377 of the Indian Penal Code, which outlaws a range of unspecified "unnatural" sex acts, is unconstitutional when applied to homosexual acts between private consenting individuals, effectively decriminalising homosexual relationships in India. See also: Homosexuality in India.|
|2013||Criminal Law (Amendment) Act was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences.|
|2015||Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act was passed by both the Houses of the Parliament. This act aims to curb black money, or undisclosed foreign assets and income and imposes tax and penalty on such income.|
Use of torture by police
The Asian Centre for Human Rights estimated that from 2002 to 2008, over four people per day died while in police custody, with "hundreds" of those deaths being due to police use of torture. According to a report written by the Institute of Correctional Administration in Punjab, up to 50% of police officers in the country have used physical or mental abuse on prisoners. Instances of torture, such as through a lack of sanitation, space, or water have been documented in West Bengal as well. 
Main article: Religious violence in India
Communal conflicts between religious groups (mostly between Hindus and Muslims) have been prevalent in India since around the time of its independence from British Rule. Among the oldest incidences of communal violence in India was the Moplah rebellion, when Militant Islamists massacred Hindus in Kerala. Communal riots took place during the partition of India between Hindus/Sikhs and Muslims where large numbers of people were killed in large-scale violence.
The 1984 Anti-Sikh Riots was a four-day period during which Sikhs were massacred by members of the secular-centrist Congress Party of India; some estimates state that more than 2,000 were killed. </ref>[ Other incidents include the 1987 Hashimpura massacre during communal riots in Meerut, 1992 Bombay Riots. The killing was supposedly done at the behest of Congress leaders such as Jagdish Tytler. Congress Party officials provided assailants with voter lists, school registration forms, and ration lists. Nanavati Commission also found out that several Congress leaders were behind this lynching. Former prime minister Manmohan Singh apologized in the Loksabha for the involvement of Congress stalwarts in the Lok Sabha. According to the 2011 WikiLeaks cable leaks, the United States was convinced of Indian National Congress complicity in the riots and called it "opportunism" and "hatred" by the Congress government of Sikhs.
According to official figures, 2002 Gujarat riots ended with 1,044 dead, 223 missing, and 2,500 injured. Of the dead, 790 were Muslim and 254 Hindu. Unofficial sources estimate that up to 2,000 people died. There were instances of rape, children being burned alive, and widespread looting and destruction of property. The Chief Minister at that time, Narendra Modi, has been accused of initiating and condoning the violence, as have police and government officials who allegedly directed the rioters and gave lists of Muslim-owned properties to them. However, Narendra Modi was acquitted of such charges by none less than the honorable Supreme Court of India. The incident that resulted in the riots was the Muslim mob attack on a train full of Hindu pilgrims in the Godhra Train Burning, where 58 Hindus were killed.
Lesser incidents plague many towns and villages; representative was the killing of five people in Mau, Uttar Pradesh during Hindu-Muslim rioting, which was triggered by the proposed celebration of a Hindu festival. Other such communal incidents include the 2002 Marad massacre, which was carried out by the militant Islamist group National Development Front, as well as communal riots in Tamil Nadu executed by the Islamist Tamil Nadu Muslim Munnetra Kazagham against Hindus.
Caste related issues
Main articles: Caste system in India, Caste politics in India, and Caste-related violence in India
Contemporary India, however, has seen the influence of caste start to decline. This is partly due to the spread of education to all castes which has had a democratising effect on the political system. However, this "equalising" of the playing field has not been without controversy. The Mandal Commission and its quotas system has been a particularly sensitive issue. It has been argued by Professor Dipankar Gupta that the role of castes in Indian elections have been overplayed.
More recently there has been a flux in caste politics, mainly caused by economic liberalisation in India. This upsurge in lower-caste empowerment was accompanied in some regions by a spike in the level of corruption. This was partly due to lower caste perceiving development programs and rule of law as tools used by the upper caste to subjugate lower castes.
Amnesty International says "it is the responsibility of the Indian government to fully enact and apply its legal provisions against discrimination on the basis of caste and descent.
Denotified tribes of India, along with many nomadic tribes collectively 60 million in population, continue to face social stigma and economic hardships, despite the fact Criminal Tribes Act 1871, was repealed by the government in 1952 and replaced by Habitual Offenders Act (HOA) (1952), as effectively it only created a new list out of the old list of so-called "criminal tribes. These tribes even today face the consequences of the 'Prevention of Anti-Social Activity Act' (PASA), which only adds to their everyday struggle for existence as most of them live below poverty line. National Human Rights Commission and UN's anti-discrimination body Committee on the Elimination of Racial Discrimination (CERD) have asked the government to repeal this law as well, as these former "criminalised" tribes continue to suffer oppression and social ostracization at large and many have been denied SC, ST or OBC status, denying them access to reservations which would elevated their economic and social status.
Freedom of expression
Main article: Freedom of expression in India
According to the estimates of Reporters Without Borders, India ranks 122nd worldwide in 2010 on the press freedom index (down from 105th in 2009). The press freedom index for India is 38.75 in 2010 (29.33 for 2009) on a scale that runs from 0 (most free) to 105 (least free). In 2014 India was down ranked to 140th worldwide (score of 40.34 out of 105) but despite this remains one of the best scores in the region.
The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under subclause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism Act (POTA) have been used to limit press freedom. Under POTA, person could be detained for up to six months before the police were required to bring charges on allegations for terrorism-related offenses. POTA was repealed in 2004, but was replaced by amendments to UAPA. The Official Secrets Act 1923 is abolished after right to information act 2005
For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..."
With the liberalisation starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government.
Organisations like Tehelka and NDTV have been particularly influential, in bringing about the resignation of powerful Haryana minister Venod Sharma. In addition, laws like Prasar Bharati act passed in recent years contribute significantly to reducing the control of the press by the government.
Main article: LGBT rights in India
Until the Delhi High Court decriminalised consensual private sexual acts between consenting adults on 2 July 2009, homosexuality was considered criminal as per interpretations of the ambiguous Section 377 of the 150-year-old Indian Penal Code (IPC), a law passed by the colonial British authorities. However, this law was very rarely enforced. In its ruling decriminalising homosexuality, the Delhi High Court noted that existed law conflicted with the fundamental rights guaranteed by the Constitution of India, and such criminalising is violative of Articles 21, 14 and 15 of the Constitution.
On 11 December 2013, homosexuality was again criminalized by a Supreme Court ruling.
Main article: Human rights abuses in Punjab, India
From 1984 to 1994, the state of Punjab in northern India was engaged in a power struggle between the militant secessionist Khalistan movement and Indian security forces. The Indian government responded to the escalating Punjab insurgency by launching Operation Blue Star in 1984, storming the Harmandir Sahib, or Golden Temple complex in Amritsar—the center of Sikh religious and spiritual life, where some militant groups had retreated. The Operation was controversial and resulted in death of hundreds of civilians, militants and soldiers. After this incident, Sikh bodyguards assassinated Prime Minister Indira Gandhi, further violence ensued.
The aftermath of these events were felt for more than a decade. According to a Human Rights Watch report, state security forces adopted “increasingly brutal methods to stem the insurgency, including arbitrary arrests, torture, prolonged detention without trial, disappearances and summary killings of civilians and suspected militants”. Militant organizations responded with increased violence aimed at civilians, state security forces, and Sikh political leaders deemed to be negotiating with the government.
Jammu and Kashmir
Main articles: Ethnic cleansing of Kashmiri Hindus and Human rights abuses in Jammu and Kashmir
Several international agencies and the UN have reported human rights violations in Indian-administered Kashmir. In a press release the OHCHR spokesmen stated "The Office of the High Commissioner for Human Rights is concerned about the recent violent protests in Indian-administered Kashmir that have reportedly led to civilian casualties as well as restrictions to the right to freedom of assembly and expression.". A 1996 Human Rights Watch report accuses the Indian military and Indian-government backed paramilitaries of "committ[ing] serious and widespread human rights violations in Kashmir." One such alleged massacre occurred on 6 January 1993 in the town of Sopore. The Human Rights Watch also wrote of other regular human rights abuses being committed by the Indian forces including "using rape as a means to punish and humiliate communities".TIME Magazine described the incident as such: "In retaliation for the killing of one soldier, paramilitary forces rampaged through Sopore's market setting buildings ablaze and shooting bystanders. The Indian government pronounced the event 'unfortunate' and claimed that an ammunition dump had been hit by gunfire, setting off fires that killed most of the victims." In addition to this, there have been claims of disappearances by the police or the army in Kashmir by several human rights organisations.
Many human rights organisations such as Amnesty International and the Human Rights Watch (HRW) have condemned human rights abuses in Kashmir by Indians such as "extra-judicial executions", "disappearances", and torture; the "Armed Forces Special Powers Act", (AFSPA) which "provides impunity for human rights abuses and fuels cycles of violence. The AFSPA grants the military wide powers of arrest, the right to shoot to kill, and to occupy or destroy property in counterinsurgency operations. Indian officials claim that troops need such powers because the army is only deployed when national security is at serious risk from armed combatants. Such circumstances, they say, call for extraordinary measures." Human rights organisations have also asked Indian government to repeal the Public Safety Act, since "a detainee may be held in administrative detention for a maximum of two years without a court order.". One 2008 report determined that Indian Administered Kashmir, was 'partly Free',
Other Human Rights Violations
Conflicts such as Anti-Bihari sentiment have sometimes escalated to violence between communal groups, despite government and police efforts to mediate the situation.
Invasive methods like 'narcoanalysis' (controlled anaesthesia), Brain mapping, and lie detector tests were once commonly permitted by Indian courts for crime investigation. Even though according to Indian constitution "nobody may be made a witness against himself".
Concerns regarding human rights violations in conducting deception detection tests (DDT)s were raised long back and the National Human Rights Commission of India had published Guidelines in 2000 for the Administration of Polygraph tests. However, only few of the investigating agencies were seen to follow these guidelines.
However, on May 5, 2010 the Supreme Court in India (Smt. Selvi vs. State of Karnataka) declared brain mapping, lie detector tests and narcoanalysis to be unconstitutional, violating Article 20 (3) of Fundamental Rights. These techniques cannot be conducted forcefully on any individual and requires consent for the same. When they are conducted with consent, the material so obtained is regarded as evidence during trial of cases according to Section 27 of the Evidence Act.
Inadequate investigation and hasty rulings by courts have caused some wrongful convictions of innocent people causing them to languish in jail for many years. For instance, the Bombay high court in September 2009 asked the Maharashtra government to pay ₹ 100,000 as compensation to a 40-year-old man who languished in prison for over 10 years for a crime he didn't commit.
Muslim Woman’s Rights in India
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One of the vital concerns in India is the non-discrimination between genders.Muslim Woman in India are one of the major groups deprived of their equality within the Human rights framework. Their hardship has derived from cultural and religious reasons. This includes being negatively stereotyped within religion, incorporating both Muslim and even Judaic-Christian beliefs. This also includes male interpretations of the Quran. Where the functions of a woman concerning family matters are seen as less than half, according to hijab, then that of their male counterparts.
Brief history of Muslim Law in India
Muslim law in South Asia is different from Islamic law of Sharia. Shariat law (shari’a or fiqh) law is seen as a body of religious rules that are set out to manage the lives, in all aspects, of every Muslim. However, in India there are only a few of these laws that are enforced. This is due to India’s laws having been modified by traditional English common law and equitable principles since the beginning of the British imperialist regime. It is now called Anglo-Muhammadan law. Although Islamic law is sacred, due to modern political and social developments sacred interpretation of classic Islamic law’s in India have changed in response to societal requirements.
The Constitution of India outlines the Fundamental rights in India to equality under Article 14. Article 15 covers freedom from discrimination which includes that of gender equality. However, Article 25 justifies the freedom of religion which safeguards the religious rights of Muslim communities, in turn Muslim Personal Law, which is discriminatory between Muslim men and woman. The continuance of discrimination within Muslim personal law contravenes that set out in India’s constitution, notably articles 14 and 15.
Personal law and inequality
Even though there is formal recognition of rights within the constitution, Muslim women experience gender in-equalities in practice within the sphere of personal law. Personal law enables the continuing practice of giving a lower status to Muslim women in India. Which raises the need for legal reform. This is hard to achieve because often uniformity of family laws are often upheld by staunch supporters of religious traditions, who will ensure that all efforts to keep traditional Muslim practices within the conformity of Islamic ideals. The courts will also favor to not let constitutional rights intrude in personal law. In the High Court case Harvinder Kaur v. Harmander Singh Choudhary, it was rejected that personal law was discriminatory towards Gender inequality in India and stated that the “…introduction of Constitutional law into the home is most inappropriate”. Essentially depriving all woman in India the fundamental rights within the constitution. Personal law discrimination was on the other hand was positively recognized in the case of Amina (Case Law: Amina v/s Unknown. AIR 1992), here the court noted that Muslim personal law is discriminatory towards Muslim women, and as such is unconstitutional.
Islamic law does however provide for certain rights. One example can be seen within a matrimonial deed, or Nikahnama. A Nikahnama can cover certain rights which pertain to polygamy and the woman’s right to enforce a divorce proceeding. This could even include shares in property rights. Muslim law for financial support due to divorcement has been codified In the Muslim Women’s (Protection of Rights on Divorce) Act 1986. Nevertheless, these rights remain minimal. For example, the divorced wife can only receive three months of financial support. Also the husband of the divorced wife only has to pay child support for 3 months if that child is born within the three-month period, but if they had a child before that then the husband is not obligated to pay any support. Woman’s rights in these matters are often not practiced due to Muslim women’s lack of education toward their rights within the Islamic community. Also Muslim woman in India are not protected when it comes to monogamous marriages, but Muslim men are, protected under the Indian Penal Code.
The Human Rights Commission (HRC) under the International Covenant on Civil and Political Rights (ICPPR) highlighted religious based personal laws In India’s report in 1997. It was informed that the Human Rights framework towards multiculturalism should be a remedy when addressing clearly biased provisions and practices towards Muslim women in Islamic legal community.
Muslim woman and Education
Muslim women are often discriminated against due to their lower achievements within the sphere of education, employment and their general economic position. This is because traditionally Muslim woman are discriminately excluded from participating within the public and private sector.
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Fundamental Rights are the basic rights of the people and the charter of rights contained in Part III(Article 12 to 35) of Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before lawfreedom of speech and expression , religious and cultural freedom and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. Violation of these rights result in punishments as prescribed in the Indian Penal Code or other special laws, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Though the rights conferred by the constitution other than fundamental rights are equally valid and their enforcement in case of violation shall be secured from the judiciary in a time consuming legal process. However, in case of fundamental rights violation, Supreme court of India can be approached directly for ultimate justice per Article 32. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.
The seven fundamental rights recognised by the Indian constitution are:
- Right to equality: Which includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. Right to equality is provided from Article 14 to Article 18 of Indian constitution.
- Right to freedom: Which includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation, right to life and liberty, protection in respect to conviction in offences and protection against arrest and detention in certain cases. Right to freedom is provided from Article 19 ,20 ,21 and 22 of constitution.
- Right against exploitation: Which prohibits all forms of forced labour, child labour and trafficking of human beings. It is provided under Articles 23 and 24 of Indian constitution.
- Right to freedom of religion: Which includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. Article 25 to 28 enumerates the right to freedom of religion.
- Cultural and Educational rights: Preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. Article 29 and Article 30 of Indian constitution provides for cultural and educational rights.
- Right to constitutional remedies: Which is present for enforcement of Fundamental Rights. It is provided under Article 32 to 35 of Indian constitution.
- Right to Privacy: Which is an intrinsic part of Article 21 that protects life and liberty of the citizens.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour (a crime). They also protect cultural and educational rights of religious and linguistic minorities by allowing them to preserve their languages and also establish and administer their own education institutions. They are covered in Part III (Articles 12 to 35) of Indian constitution.
The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789).
In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom. Committing themselves to socialism in 1936, the Congress leaders took examples from the Constitution of the Soviet Union, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
Task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives. The Constituent Assembly first met on 9 December 1946 under the presidency of Dr. Sachidanand later Dr. Rajendra Prasad was made its President. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949), prepared by the Drafting Committee.
Significance and characteristics
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognised and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.
All people, irrespective of race, religion, caste or sex, have been given the right to petition directly the Supreme Court or the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation". In some cases, High Court judges have acted suo moto on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasise on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a constitutional amendment, their inclusion is a check not only on the executive branch but also on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws that go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.
Right to equality
Right to equality is an important and meaningful right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:
- Equality before law: Article 14 of the constitution guarantees that all people shall be equally protected by the laws of the country. It means that the State will treat people in the same circumstances alike. This article also means that individuals, whether citizens of India or otherwise shall be treated differently if the circumstances are different.
- Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of religion, race, caste, sex or place of birth. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.
- Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can be filled only by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed that requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.
- Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offence and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.
- Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India – these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.
Right to freedom
The Constitution of India contains the right to freedom, given in articles 19, 20, 21, 21A and with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. It is a cluster of four main laws. The right to freedom in Article 19 guarantees the following six freedoms:
- Freedom of speech and expression, on which the State can impose reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
- Freedom to assemble peacefully without arms on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.
- The Freedom to form associations or unions or co-operative societies on which the State can impose reasonable restrictions in the interest of public order, morality and the sovereignty and integrity of India.
- Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.
- Freedom to reside and settle in any part of the territory of India, subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.
- Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practising any profession or carrying on any trade.
Article 21A gives education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.
Right to Information (RTI)
Right to Information has been given the status of a fundamental right under Article 19(1) of the Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and have the right to know how the government works, what role does it play, what are its functions and so on.
Right against exploitation
The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour), and abolition of employment of children below the age of 14 years in dangerous jobs like factories, mines, etc. Child labour is considered a gross violation of the spirit and provisions of the constitution. Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.
Right to freedom of religion
Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions that are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot be impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity that may be associated with religious practice, or providing for social welfare and reform.
Right to life
The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
- Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.
- Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can be disputed only if that person has committed a crime. However, the right to life does not include the right to die and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996 however another Supreme Court ruling nullified the earlier one.) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.
- In 2002, through the 86th Amendment Act,Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age. Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008.
- Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.
Cultural and Educational rights
As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community that has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.
All minorities, or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State cannot interfere in case of maladministration. In a precedent-setting judgement in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could be only through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.
Right to constitutional remedies
Right to constitutional remedies [Article 32 to 35] empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, any citizen can ask the court to see if it is according to the provisions of the law of the country by lodging a PIL. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. Dr. B. R. Ambedkar rightly declared Right to constitutional remedies as "the heart and soul" of Indian constitution. When a national or state emergency is declared, this right is suspended by the central government.
Article 32 is also called citizens right to protect and defend the constitution as it can be used by the citizens to enforce the constitution through the judiciary.
Right to Privacy
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. It protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. On 24 August 2017 the Supreme Court ruled that:
"Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution,"
— Supreme Court
The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticised for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA), Armed Forces (Special Powers) Act and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality are criminalised in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. But in 2014, India has improved marginally to a rank of 85. The right to equality in matters regarding public employment shall not be conferred to overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.
As per Article 19 of Part III of the Indian constitution, the fundamental rights of people such as freedom of speech and expression, gathering peaceably without arms and forming associations or unions shall not effect the interests of the sovereignty and integrity of India but not unity of India. The words sovereignty and integrity are the qualities to be cultivated / emulated by Indian people as urged by the Indian constitution but not used related to territory of India. Article 1 of Part 1 of the Indian constitution,defines India (Bharat) as union of states. In nutshell, India is its people not its land as enshrined in its constitution.
Since speedy trial is not the constitutional right of the citizens, the cases involving violations of fundamental rights take inordinate time for resolution by the Supreme Court which is against the legal maxim 'justice delayed is justice denied'.
Changes to the fundamental rights require a constitutional amendment, which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting in support of the amendment shall not be less than the simple majority of the total members of a house – whether the Lok Sabha or Rajya Sabha.
Fundamental rights not sacrosanct
While deciding the Golaknath case in February 1967, Supreme Court ruled that the Parliament has no power to curtail the fundamental rights. They were made permanent and sacrosanct reversing the Supreme Court's earlier decision which had upheld Parliament's power to amend all parts of the Constitution, including Part III related to Fundamental Rights. Up till the 24th constitutional amendment in 1971, the fundamental rights given to the people were permanent and can not be repealed or diluted by the Parliament. 24th constitutional amendment introduced a new Article 13(4) enabling Parliament to legislate on the subjects of Part III of the constitution using its constituent powers per Article 368 (1). In the year 1973, the 13 member constitutional bench of supreme court also upheld with majority the validity of 24th constitutional amendment. However it ruled that Basic structure of the constitution which is built on the basic foundation representing the dignity and freedom of the individual. This is of supreme importance and cannot be destroyed by any form of amendment to the constitution. Many constitutional amendments to Part III of the constitution were made deleting or adding or diluting the fundamental rights before the judgement of Golaknath case (Constitutional amendments 1,4,7 and 16) and after the validity of 24th constitutional amendment is upheld by the Supreme Court (Constitutional amendments 25,42,44,50,77,81,85,86,93 and 97).
Validity of Article 31B
Articles 31A and Article 31B are added by First constitutional amendment in 1951. Article 31B says that any acts and regulations included in the Ninth Schedule of the constitution by the Parliament can override the fundamental rights and such laws can not be repealed or made void by the judiciary on the grounds of violating fundamental rights. In 2007, Supreme Court ruled that there could not be any blanket immunity from judicial review for the laws inserted in the Ninth Schedule. Apex court also stated it shall examine laws included in the Ninth Schedule after 1973 for any incompatibility with the basic structure doctrine.
Amendment to Article 31C
Section 4 of the 42nd Amendment, had changed Article 31C of the constitution to accord precedence to the Directive Principles(earlier applicable only to clauses b & c of Article 39) over the fundamental rights of individuals. In Minerva Mills v. Union of India case, supreme court ruled that the amendment to the Article 31C is not valid and ultra vires.
Right to property
The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The Forty-Fourth Amendment of 1978 deleted the right to property from the list of fundamental rights A new provision, Article 300-A, was added to the constitution, which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by aggrieved citizens.
The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property. The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL
Right to education
The right to education at elementary level has been made one of the fundamental rights in 2002 under the Eighty-Sixth Amendment of 2002. However this right was brought in to implementation after eight years in 2010. Article 21A – On 2 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force. Making elementary education an entitlement for children in the 6–14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. This act provides for appointment of teachers with the requisite entry and academic qualifications.
The former Prime Minister Dr. Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6–14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs.250 billion to the States for implementing the Act. The Centre has approved an outlay of Rs.150 billion for 2010–2011.
The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.