FUNDAMENTAL RIGHTS,
A. Fundamentals of the Constitution
3.1 The Constitution which lays down the
basic structure of a nation's polity is built on the foundations of certain
fundamental values. The vision
of our founding fathers and the aims and objectives which they wanted to
achieve through the Constitution are contained in the Preamble, the Fundamental
Rights and the Directive Principles. These
three may be described as the soul of the Constitution and the testament of the
founding fathers to the succeeding generations together with the later Part on
Fundamental Duties.
B. Vision of Socio-Economic Change
The
Preamble
3.2.1 The vision of socio-economic change
through the Constitution is reflected in its lofty Preamble. The Preamble expresses the ideals and
aspirations of a renascent India. At
independence, emerging out of a long period of foreign domination and
oppression under a feudal system, the people were grimly struggling to be
reborn into a life of dignity and hope. The
past was heavy on their shoulders, and the future uncertain. There was social and economic
exploitation around. There were a whole host of social ills such as illiteracy,
superstition, sati,
child-marriage, agrarian exploitation, child-labour, bonded labour,
gender-inequality, bedeviling the society and polity.
3.2.2 The framers of the Constitution sought to unite the vast country
with its great diversity of languages and creeds within a common bond of constitutional
justice based on the great ideals of liberty, equality, fraternity and
justice. Framers showed an
uncompromising respect for human dignity, an unquestioning commitment to
equality and non-discrimination, and an abiding concern for the poor and the
weak. They made a bold
attempt to base the constitutional foundations on the firm faith that all
classes of people, followers of all faiths, and particularly the traditionally
under-privileged should all join to work for harmony, progress, prosperity and
nation building.
3.2.3 The Preamble through its noble words promised Justice, social,
economic and political; Liberty of thought, expression, belief, freedom of
faith and worship; Equality of status and of opportunity and to promote
Fraternity, assuring the dignity of the individual and the unity and integrity
of the Nation. Speaking of
the imperatives of social democracy, Dr. Ambedkar said:
"it was, indeed, a way of
life, which recognizes liberty, equality and fraternity as the principles of
life and which cannot be divorced from each other: Liberty cannot be divorced from
equality; equality cannot be divorced from liberty. Nor can liberty and equality be
divorced from fraternity. Without
equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill
individual initiative. Without
fraternity, liberty and equality could not become a natural course of
things."
The
Socio-economic Agenda
3.3.1 The scheme of the Constitution for the realisation of the
socio-economic agenda comprises of both the justiciable Fundamental Rights as
well as the non-justiciable Directive Principles. The judicial contribution to the
synthesis and the integration of the Fundamental Rights and the Directive
Principles in the process of "constitutionalising" social and
economic rights has been crucial to the realisation of the Directive Principles
not only as a means to effectuate Fundamental Rights but also as a source of
laws for a welfare state.
3.3.2 The Constitution makes it mandatory to protect and promote
freedoms, and to assure every citizen a decent standard of living. It makes a strong commitment to
promoting the well-being of all citizens without any discrimination on the
grounds of caste, creed,
community or gender.
C. Fundamental Rights
Background
and Approach
3.4.1 Constitutional
guarantees for the human rights of our people were one of the persistent
demands of our leaders throughout the freedom struggle. By the year 1949, when the Constituent
Assembly had completed the drafting of the Fundamental Rights Chapter, it had
before it the ‘Universal Declaration of Human Rights, 1948.
3.4.2 The
International Covenant on Civil and Political Rights,1966 (ICCPR) broadly
referred to the inherent right to life and liberty and the right against
arbitrary deprivation of those rights and its various aspects (Articles 6 to
14); privacy, family, etc. (Article 17); freedom of conscience and religion
(Article 18); freedom of expression and information (Article 19); Right of
peaceful assembly (Article 21); freedom of association (Article 22); rights of
minorities (Article 27); etc. The International Covenant on Economic, Social
and Cultural Rights, 1966 (ICESCR) broadly referred to the “right to work” and its various
aspects (Articles 6 and 7); right to form trade unions for promotion of
economic or social interests and the right to strike (Article 8); right to
social security and social insurance (Article 9); family, marriage, children
and mothers’ rights (Article 10); adequate standard of living, right to food,
clothing and housing, freedom from hunger (Article 11); physical and mental
health (Article 12); education (Article 13); compulsory primary education
(Article 14) and culture (Article 15). The
treaty obligations under the covenant enjoined the State Parties to ensure
these rights without discrimination and “to take steps” to promote them “to the
maximum of its available resources”, with a view to achieving “progressively”
the full realisation of these rights. The Directive Principles of State Policy
in Part IV of the Constitution are indeed the precursor to economic, social and
cultural rights specified in the
ICESCR.
3.4.3 During
the last three decades, a vast number of human rights have found place in new
constitutions and bills of rights of more than eighty countries and of
supra-national entities. Countries which enacted these new constitutions have
had the benefit of all the developments in the human rights jurisprudence which
have taken place since 1950. Also, our Supreme Court has by judicial
interpretation expanded the scope of the fundamental rights, particularly in
relation to article 21, and this has included more civil and political rights
which were not explicit in Part III.
3.4.4 A
new development is that of the principle of ‘basic structure’ of the
Constitution enunciated by the Supreme Court in 1973 in Kesavananda Bharati vs. State of
Kerala
[1]. As to what are these basic features,
the debate still continues. The Supreme Court has also held that the scope of
certain fundamental rights could be adjudged by reading into them or reading
them not only in the light of the Directive Principles of State Policy but also
international covenants or conventions which were in harmony with the
Fundamental Rights.
3.4.5 The
Commission feels that after fifty years, time is ripe to review and enlarge
suitably the contents of some of the Fundamental Rights, particularly those
Fundamental Rights which have been judicially deduced.
Definition of ‘the State’
3.5 Fundamental rights guaranteed by the
Constitution are, in the absence of specific constitutional provisions, mainly
enforceable against ‘the State’. The definition of 'the State' in article 12
being an ‘inclusive’ one, courts have ruled that where there is pervasive or
predominant governmental control or significant involvement in its activity,
such bodies, entities and organizations fall within the definition of ‘the
State’.
It is recommended that in article
12 of the Constitution, the following Explanation should be added:-
‘Explanation – In this article, the expression “other authorities”
shall include any person in relation to such of its functions which are of a
public nature.’
Heads of discrimination
3.6 In articles 15 and 16, prohibition
against discrimination should be extended to “ethnic or social origin;
political or other opinion; property or birth”.
Reservation for minorities
3.7.1 There
was a plea on behalf of some minority communities for an express provision for
reservation in favour of minorities both in articles 15 (4) and 16 (4). The
Commission, upon due consideration of the representations, felt that no special
provision was necessary inasmuch as, under the existing provision of articles
14, 15 and 16, it is open to the State to make reservation if it is of the
opinion that such reservation is necessary and justified.
3.7.2 The
Commission noted that the ultimate aim of affirmative action of reservation
should be to raise the levels of capabilities of people of the disadvantaged
sections and to bring them at par with the other sections of society.
Freedom of Press and Freedom of
Information
3.8.1 Article
19(1)(a) refers to ‘freedom of speech and expression’. It is proposed that the article must
expressly include the freedom of the press and other media, the freedom to hold
opinion and to seek, receive and impart information and ideas. It is also proposed to amend article
19(2) by adding a further restriction on disclosure of information received in
confidence except if required in public interest.
The Commission recommends that
article 19(1)(a) and (2) be amended to read as follows:
“Art. 19(1): All citizens shall have the right -
(a) to freedom of speech and
expression which shall include the freedom of the press and other media, the
freedom to hold opinions and to seek, receive and impart information and
ideas;”.
19(2): “Nothing
in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said
sub-clause 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, or preventing the disclosure of information received
in confidence except when required in public interest.”.
3.8.2 A mere legislation by the Parliament
by amending the Contempt of Courts Act, 1971 alone may not suffice because the
power of the Supreme Court and the High Courts to punish for contempt is
recognized in the Constitution. Therefore, the
Commission recommends that an appropriate proviso to article 19(2) of the
Constitution may be added as under:-
“Provided that, in matters of contempt, it shall be open to
the Court to permit a defence of justification by truth on satisfaction as to
the bona fides of the plea and it being in public interest.”.
Rights against torture
and inhuman, degrading and cruel treatment and punishment
3.9 Torture and inhuman, degrading
and cruel treatment and punishment grossly violate human dignity. The Supreme Court has implied a right
against torture, etc. by way of interpretation of article 21 which deals with
the right to life and liberty. The
Universal Declaration of Human Rights 1948 and the ICCPR prohibit such acts in
article 5 and article 7 respectively.
It is, therefore, recommended that the existing article 21 may be
re-numbered as clause (1) thereof, and a new clause (2) should be inserted
thereafter on the following lines: -
“(2) No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment.”.
Right to compensation for
being illegally deprived of one’s right to life or liberty
3.10 Article 9(5) of the ICCPR states, “any one who
has been victim of unlawful arrest or detention
shall have an enforceable right to compensation.” In D.K.
Basu vs. State of West Bengal
[1], the
Supreme Court of India held that the reservation made by India to this clause
while acceding to the Convention does not come in the way of the Court’s
awarding compensation in the
cases of illegal arrest or detention. The High Courts in India have also been
awarding compensation.
It is, therefore, recommended as under:-
After clause
(2) in article 21 as proposed in para 3.9, a new clause (3) should be added on
the following lines :-
“(3) Every person who has been illegally
deprived of his right to life or liberty shall have an enforceable right to
compensation.”
Right to
travel abroad and return to one’s country
3.11 The Supreme Court has spelt out in
articles 14 and 21 the right to travel abroad and return to one’s
country. Again, this right
finds a place in article 13(2) of the Universal Declaration of Human Rights,
1948 as well as in articles 12(2),(3) and (4) of the ICCPR.
It is, therefore, recommended that after article 21, a new
article, say article 21A, should be inserted on the following lines:-
“21A. (1) Every person
shall have the right to leave the territory of India and every citizen shall
have the right to return to India.
(2) Nothing in clause (1) shall prevent
the State from making any law imposing reasonable restrictions in the interests
of the sovereignty and integrity of India, friendly relations of India with
foreign States and interests of the general public.”
Right to
Privacy
[1] ‘Right
to Privacy’ in the Right to ‘Life’ under article 21.
It is, therefore, proposed that a
new article, namely, article 21-B, should be inserted on the following lines:
“21-B. (1) Every
person has a right to respect for his private and family life, his home and his
correspondence.
(2) Nothing in clause (1) shall
prevent the State from making any law imposing reasonable restrictions on the
exercise of the right conferred by
clause (1), in the interests of security of the State, public safety or for the prevention of disorder or
crime, or for the protection of health
or morals, or for the protection of the rights and freedoms of others.
Right to Work
3.13.1 It is in the
rural sector that widespread poverty, underemployment, malnutrition, lack of
access to healthcare and oppressive social customs that bear down heavily on
women and children create a social landscape of appalling misery. It is here that a major action plan
has to be launched to create additional jobs, to enhance incomes of those at
the bottom rung of the social ladder and to create the physical and social
infrastructure of a vibrant economy.
3.13.2 The
Commission, therefore, recommends that a new article, say article 21-C, may be added to make
it obligatory on the State to bring suitable legislation for ensuring the right
to rural wage employment for a minimum of eighty days in a year.
Preventive Detention
3.14.1 Article 22 (3)(b) permits ‘preventive
detention’ and the rule in clause (2) of article 22 which requires production
before the nearest magistrate within 24 hours does not also apply in such
cases. No doubt, several preventive detention laws have been upheld by the
courts. But, being
detention without trial, there is a view that such a detention is a negation of
the rule of law and the principles of fair trial. The arrest is supposed to be made on
the basis of information that the person is likely to commit some serious
offences. There are complaints
that this law is misused quite frequently.
3.14.2 While the Commission does not propose
to recommend deletion of clauses dealing with preventive detention under
article 22, it recommends the
following changes :-
(i) The first and second provisos and
Explanation to article 22(4) as contained in section 3 of the Constitution (44th Amendment) Act, 1978 should be
substituted by the following provisos and the said section 3 of the 1978 Act as
amended by the proposed legislation should be brought into force within a
period of not exceeding three months :-
“Provided that an Advisory Board shall
consist of a Chairman and not less than two other members, and the Chairman and
the other members of the Board shall be serving judges of any High Court :
Provided further that nothing in
this clause shall authorize the detention of any person beyond a maximum period
of six months as may be prescribed by any law made by Parliament under
sub-clause(a) of clause (7)”.
(ii) In clause (7) of article 22 of the
Constitution, in sub-clause (b), for the words “the maximum period”, the words
“the maximum period not exceeding six months” shall be substituted.
Right to justice and legal aid
3.15.1 The
Commission recommends that after article 30, the following article should be
added as article 30A:
“30A: Access to Courts and
Tribunals and speedy justice
(1) Everyone has a right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before an
independent court or, where appropriate, another independent and impartial
tribunal or forum.
(2) The right to access to courts shall be deemed to include the
right to reasonably speedy and effective justice in all matters before the
courts, tribunals or other fora and the State shall take all reasonable steps
to achieve the said object.”
3.15.2 Legal
aid is essential for effective implementation of the various rights included in
Part III to help the needy and the indigent. The
Commission recommends that article 39A in Part IV be shifted to Part III
as a new article 30B to read as under:-
“39B. Equal
justice and free legal aid: The State shall secure that the operation of the
legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities.”
Right to property
3.16.1 After
the 44th Amendment of
the Constitution, right to property has ceased to be a fundamental right. Under article 300A, it has become a
constitutional right. One other important aspect is with regard to deprivation
or acquisition of agricultural and homestead land belonging to weaker sections. Before such deprivation takes place,
the persons so deprived must be provided lands of quality as nearly as may be equal to the lands such persons were
previously occupying or otherwise adequately rehabilitated.
3.16.2 The
Commission recommends that article 300-A should be recast as follows:-
“300-A (1)
Deprivation or acquisition of property shall be by authority of law and only
for a public purpose.
(2) There shall be no arbitrary
deprivation or acquisition of property:
Provided that no deprivation or acquisition
of agricultural, forest and non-urban homestead land belonging to or
customarily used by the Scheduled Castes and the Scheduled Tribes shall take
place except by authority of law which provides for suitable rehabilitation
scheme before taking possession of such land.”
Article 31B and Ninth Schedule
3.17 A
number of enactments unrelated to the rationale underlying articles 31B have
come to be included in the Ninth Schedule with a view to keep them secure from
attack on the ground that such enactment or a provision thereof is inconsistent
with any provision of Part III of the Constitution. In the Consultation Paper
[1] on
‘Enlargement of Fundamental Rights’, it was proposed that article 31B be
suitably amended to provide that the laws to be included in the Ninth Schedule
must, in pith and substance, relate to agrarian reforms or land reforms or laws
to give effect to the directive principles in article 39(b) and 39(c). After further discussion, the Commission recommends that in
article 31-B, the following proviso should be added at the end, namely :-
“Provided that the protection afforded by this article to Acts and
Regulations which may be hereafter specified in the Ninth Schedule or any of
the provisions thereof, shall not apply unless such Acts or Regulations relate
–
(a) in pith and substance to agrarian
reforms or land reforms;
(b) to reasonable quantum of
reservation under articles 15 and 16;
(c) to provisions for giving effect
to the policy of the State towards securing all or any of the principles
specified in clause (b) or clause (c) of article 39.”
Suspension of articles 17, 23,
24, 25 and 32 during emergency
3.18.1 Article
359 deals with “Suspension of the enforcement of the rights conferred by Part
III during emergencies”. Clause (1) permits suspension of the right to move
court but excludes article 20 (retrospectivity of law relating to offences,
double jeopardy and self-incrimination) and article 21 (Life and liberty not to
be deprived except according to procedure established by law which after Maneka
Gandhi’s case
[1] means
fair, reasonable and just procedure).
3.18.2 The
Commission recommends that clauses (1) and (1A) of article 359 should be
amended by substituting for “(except articles 20 and 21)”, the following-
“(except articles 17,20,21,23,24,25 and 32)”
Capital Punishment
3.19 Section
121 of the Indian Penal Code permits death sentence or life imprisonment to be
imposed for the offences of waging war against the Government of India, or
attempts to wage such a war or abetment of such a war. The Commission, after due
deliberations, has not thought it appropriate to recommend, at this stage, any
change in the existing law relating to imposition of death penalty.
Right to Education
3.20.1 At the
time when the Commission released its Consultation Paper on the subject,
Constitution (93rd Amendment)
Bill was under consideration. But
the proposed Amendment covers the Right to Free and Compulsory Education only
between the years 6 and 14 years. The Commission is of the view that the Right
to Free and Compulsory Education should also be extended to the children upto
the age of fourteen years and that the right to
education beyond
the age of 14 years may depend upon the economic capacity and the stage of
development of the State.
3.20.2 The
Commission feels that the constitutional commitment for free and compulsory
education for all children until the age of fourteen should under no
circumstances be diluted and the State should fulfill this solemn obligation to
the nation. The
responsibility for the universalisation of elementary education should be
entrusted to Panchayats and local self government institutions. It is recommended that the
relevant provisions in the Constitution (93rd Amendment) Bill, 2001 making the right
to education of children from six years till the completion of fourteen years
as a Fundamental Right should be amended and enlarged to read as under:-
“30-C Every child shall have the right to free education until he
completes the age of fourteen years; and in the case of girls and members of
the Scheduled Castes and the Scheduled Tribes, until they complete the age of
eighteen years.”.
Rights of Children
3.21.1 Article
39(e) in the Directive Principles in Part IV refers to the duty of the State to
direct its policy to see that children of tender age are not abused. Article 39 (f) refers to a similar
duty on the State to give opportunities and facilities to children to develop
in a healthy manner and with dignity and in conditions which are free and where
childhood and youth are protected against exploitation and moral and material
abandonment.
3.21.2 The
Commission recommends that the following article should be added -
“Art. 24A. Every
child shall have the right to care and assistance in basic
needs and protection from all forms of neglect, harm and exploitation.”
Right to safe drinking water, clean environment, etc.
3.22.1 Gandhiji had once said that freedom for him would mean the
availability of safe drinking water to every person in every village of
India. This has still not
become a reality.
3.22.2 Right
to healthy environment and its protection and the right to development are
group-rights and are loosely described as ‘third generation rights’. The right to sustainable development
has been declared by the UN General Assembly as an inalienable human right
[1]. The Declaration recognizes that ‘human
being is the central subject of the development process and that the
development policy shall make the human being the main participant and
beneficiary of development’. “Development” is defined as a
‘comprehensive economic, social, cultural and political process, which aims at
the constant improvement of the well being of the entire population in
development and in the fair distribution of benefits therefrom[1]. The
Rio Conference of 1992 declared human beings as centres of concern for
sustainable development. Human
beings are, it is said, entitled to a healthy and protective life in harmony
with nature (Principle 1). “In
order to achieve ‘sustainable development’ environmental protection shall
constitute an integral part of the development process and cannot be considered
in isolation of it”. The
1997 Earth Summit meeting of 100 nations in New York affirmed these principles[2].
3.22.3 The
Commission recommends that after the proposed article 30-C, the following
article may be added as article 30-D :-
“Art. 30-D. Right to safe drinking water,
prevention of pollution, conservation of ecology and sustainable development. -
Every person shall have the right –
(a) to safe drinking water;
(b) to an environment that is not harmful to one’s health or
well-being; and
(c) to have the environment protected, for the benefit of present
and future generations so as to –
(i) prevent pollution and ecological
degradation;
(ii) promote
conservation; and
(iii) secure
ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.”.
Right to Freedom of Religion
3.23.1 A number of
institutions of Sikhs and Buddhists suggested certain changes in article
25(2). Explanation II to
article 25 provides that reference to Hindus in sub-clause (b) of clause (2)
should be construed as including a reference to Sikhs etc.
3.23.2 The
Commission, without going into the larger issue on which the contention is
based, is of the opinion that the purpose of the representations would be
served if Explanation II to article 25 is omitted and sub-clause (b) of clause
(2) of that article is reworded as follows:-
“(b) providing for social welfare and reform or the throwing open
of Hindu, Sikh, Jaina or Buddhist religious institutions of a public character
to all classes and sections of these religions.”
Special provision
relating to language spoken by a section of population of a State
3.24 In
order to make the rights available to minorities under articles 29 and 30
meaningful, the Commission feels that the provisions contained under article
347 need some modification. Before the President directs that use of any
language spoken by a section of the population of a State be recognized in a
State for such purposes as he may specify, he has to ensure that a substantial
proportion of the population of that State so desires. The explanation “substantial
proportion of the population” had been a subject matter of controversy and
different constructions have been placed up on it. It shall be desirable that some
optimum level of population with a view to take necessary action under this
constitutional provision is prescribed. In
article 347 of the Constitution, for the words “a substantial proportion of the
population”, the words “not less than ten per cent of the population” should be
substituted.
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