Introduction:
A democratic government has to be periodically elected by the people in a free and fair manner.
A democracy must be based on institutions that follow certain rules and procedures.
These elements are necessary but not sufficient for a democracy.
Elections and institutions need to be combined with a third element – enjoyment of rights to make a government democratic.
Even the most properly elected rulers working through the established institutional process must learn not to cross some limits.
Citizens’ democratic rights set those limits in a democracy
Life without rights:
Prison in Guantanamo Bay
About 600 people were secretly picked up by the US forces from all over the world and put in a prison in Guantanamo Bay, an area near Cuba controlled by American Navy.
The American government said that they were enemies of the US and linked to the attack on New York on 11 September 2001.
In most cases the governments of their countries were not asked or even informed about their imprisonment.
There was no trial before any magistrate in the US.
Nor could these prisoners approach courts in their own country.
Amnesty International, an international human rights organisation, collected information on the condition of the prisoners in Guantanamo Bay and reported that the prisoners were being tortured in ways that violated the US laws.
They were being denied the treatment that even prisoners of war must get as per international treaties.
Many prisoners had tried protesting against these conditions by going on a hunger strike.
Prisoners were not released even after they were officially declared not guilty.
An independent inquiry by the UN supported these findings.
The UN Secretary General said the prison in Guantanamo Bay should be closed down.
The US government refused to accept these pleas.
Citizen’s rights in Saudi Arabia:
The country is ruled by a hereditary king and the people have no role in electing or changing their rulers.”
The king selects the legislature as well as the executive.
He appoints the judges and can change any of their decisions.
Citizens cannot form political parties or any political organisations Media cannot report anything that the monarch does not like.
There is no freedom of religion.
Every citizen is required to be Muslim.
Non-Muslim residents can follow their religion in private, but not in public.
Women are subjected to many public restrictions.
The testimony of one man is considered equal to that of two women.
This is true not just of Saudi Arabia.
There are many countries in the world where several of these conditions exist.
Ethnic massacre in Kosovo:
Kosovo, a province of Yugoslavia before its split.
In this province the population was overwhelmingly ethnic Albanian.
But in the entire country, Serbs were in majority, a narrow minded Serb nationalist Milosevic (pronounred Miloshevich) had won the election.
His government was very, hostile to the Kosovo Albanians.
He wanted the Serbs to dominate the country Many Serb leaders thought that Ethnic minorities like Albanians should either leave the country or accept the dominance of the Serbs.
This is what happened to an Albanian family in a town in Kosovo in April 1999: 74-year-old Batisha Hoxha was sitting in her kitchen with her 77-year-old husband Izet, staying warm by the stove.
They had heard explosions but did not realise that Serbian troops had already entered the town.
The next thing she knew, five or six soldiers had burst through the front door and were demanding.
With her husband dying before her, the soldiers pulled the wedding ring off her finger and told her to get out.
She was standing on the street in the rain with no house, no husband, no possessions but the clothes she was wearing.
This massacre was being carried out by the army of their own country.
Working under the direction of a leader who came to power through democratic election.
This was one of the worst instances of killings based on ethnic prejudices in recent times.
Finally several other countries intervened to stop this massacre.
Milosevic lost power and was tried by the International Court of Justice for crimes against humanity
Rights in a democracy – what are rights?
Rights are claims of a person over other fellow beings, over the society and over the government.
All of us want to live happy without fear and without being subjected to degraded treatment.
For this we expect others to behave in such a way that does not harm us or hurt us equally, our actions should not also harm or hurt others.
So a right is possible when you make a claim that is equally possible for others.
Just because we claim something it does not become our right.
It has to be recognised by the society we live in.
Rights acquire meaning only in society.
Every society makes certain rules to regulate our conduct.
They tell us what is right and what is wrong, what is recognised by the society as rightful becomes the basis of rights.
That is why the notion of rights changes from time to time and society to society.
Two hundred years ago anyone who said that women should have right to vote would have sounded strange.
Today not granting them vote in Saudi Arabia appears strange.
The prisoners in Guantanamo Bay had a moral claim not to be tortured or humiliated.
But they could not go to anyone to enforce this claim.
When law recognises some claims they become enforceable.
We can then demand their application.
When fellow citizens or the government do not respect these rights we call it violation or infringement of our rights.
Rights are reasonable claims of persons recognised by society and sanctioned by law.
Why do we need rights in a democracy?
Rights also perform a very special role in a democracy.
Rights protect minorities from the oppression of majority.
They ensure that the majority cannot do whatever it likes.
Rights are guarantees which can be used when things go wrong.
Things may go wrong when some citizens may wish to take away the rights of others.
This usually happens when those in majority want to dominate those in minority.
Some rights need to be placed higher than the government, so that the government cannot violate them.
In most democracies the basic rights of the citizen are written down in the constitution.
Rights in Indian constitution:
In India, like most other democracies in the world, these rights are mentioned in the Constitution.
Some rights which are fundamental to our life are given a special status. They are called Fundamental Rights.
It talks about securing for all its citizens equality, liberty and justice.
Fundamental Rights put this promise into effect.
They are an important basic feature of India’s Constitution.
Classification of Fundamental Rights or Fundamental Rights guaranteed to the citizens of India:
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Our Constitution in the beginning bestowed six Fundamental Rights on us. They were:
Right to equality
Right to freedom
Right against Exploitation
Right to Freedom of Religion
Cultural and Educational Rights
Right to Constitutional Remedies
Right to Equality:
The Constitution says that the government shall not deny to any person in India equality before the law or the equal protection of the laws.
It means that the laws apply in the same manner to all, regardless of person’s status.
This is called the rule of law. Rule of law is the foundation of any democracy.
It means that no person is above the law.
Then cannot be any distinction between a political leader, government official and an ordinary citizen.
Every citizen, from the Prime Minister to a small farmer in a remote village, is subjected to the same laws-No person can legally claim any special treatment or privilege just because he or she happens to be an important person.
For example, a few years ago a former Minister of the country faced a court case on charges of cheating.
The court finally declared that he was not guilty.
But as long as the case continued, he had to go to the court, give evidence and file papers just like any other citizen.
This basic position is further clarified in the Constitution by spelling out some implications of the Right in Equality.
The government shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
Every citizen shall have access to public places like shops, restaurants hotels, and cinema halls.
Similarly, there shall be no restriction with regard in the use of wells, tanks, bathing ghats, roads, playgrounds and places of public resorts maintained by government or dedicated to the use of general public.
This might appear very obvious, but it was necessary to incorporate these rights in the Constitution of our country where the traditional caste system did not allow people from some communities to access all public places.
The same principle applies to public jobs.
All citizens have equality of opportunity in matters relating to employment or appointment to any position in the government.
No citizen shall be discriminated against or made ineligible for employment on the grounds mentioned above.
You have read in Chapter Five that the Government of India has provided reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes.
Various governments have different schemes for giving preference to women, poor or physically handicapped in some kinds of jobs.
Are these reservations against the right to equality?
They are not, for equality does not mean giving everyone the same treatment, no matter what they need.
Equality means giving everyone an equal opportunity to achieve whatever one is capable of sometimes it is necessary to give special treatment to someone in order to ensure equal opportunity.
This is what job reservations do.
Just to clarify this, the Constitution says that reservations of this kind are not a violation of the Right to Equality.
The principle of non-discrimination extends to social life as well.
The Constitution mentions one extreme form of social discrimination, the practice of untouchability, and clearly directs the government to put an end to it.
The practice of untouchability has been forbidden in many forms.
Untouchability here does out only mean refusal to touch people belonging to certain castes.
It refers to any belief or social practice which looks down upon people on account of their birth with certain caste labels.
Such practice denies them interaction with others or access to public places as equal citizens.
So the Constitution made untouchability a punishable offence.
Right to Freedom:
Freedom means absence of constraints.
In practical life it means absence of interference in our affairs by others- be it other individuals or the government.
We want to live in society, but we want to be free.
We want to do things in the way we want to do them.
Others should not dictate us what we should do.
So, under the Indian Constitution all citizens have the right to….
- Freedom of speech and expression
- Assembly in a peaceful manner
- Form associations and unions
- Move freely throughout the country
- Reside in any part of the country, and
- Practice any profession, or to carry on any occupation, trade or business.
Freedom of speech and expression is one of the essential features of any democracy.
Our ideas and personality develop only when we are able to freely communicate with others.
You may think differently from others.
Even if a hundred people think in one way, you should have the freedom to think differently and express your views accordingly.
You may disagree with a policy of government or activities of an association.
You are free to criticise the government or the activities of the association in your conversations with parents, friends and relatives.
You may publicise your views through a pamphlet, magazine or newspaper.
You can do it through paintings, poetry or songs.
However, you cannot use this freedom to instigate violence against others.
You cannot use it to incite people to rebel against government.
Neither can you use it to defame others by saying false and mean things that cause damage to a person’s reputation.
Citizens have the freedom to hold meetings, processions, rallies and demonstrations on any issue.
They may want to discuss a problem, exchange ideas, mobilise public support to a cause, or seek votes for a candidate or party in an election.
But such meetings have to be peaceful.
They should not lead to public disorder or breach of peace in society.
Those who participate in these activities and meetings should not carry weapons with them.
Citizens also can form associations.
For example workers in a factory can form a workers’ union to promote their interests.
Some people in a town may come together to form an association to campaign against corruption or pollution.
As citizens we have the freedom to travel to any part of the country.
We are free to reside and settle in any party of the territory of India.
Let us say a person who belongs to the state of Assam wants to start a business in Hyderabad.
He may not have any connection with that city; he may not have even seen it ever.
Yet as a citizen of India he has the right to set up base there.
This right allows lakhs of people to migrate from villages to towns and from poorer regions of the countries to prosperous regions and big cities.
The same freedom extends to choice of occupations.
No one can force you to do or not to do a certain job.
Women cannot be told that some kinds d occupations are not for them.
People from deprived castes cannot be kept to their traditional occupations.
The Constitution says that no person can be deprived of his life or personal liberty except according to procedure established by law.
It means that no person can be killed unless the court has ordered a death sentence.
It also means that a government or police officer can arrest or detain any citizen unless he has proper legal justification.
Even when they do, they have to follow some procedures.
A person who is arrested and detained in custody will have to be informed of the reasons for such arrest and detention.
A person who is arrested and detained shall be produced before the nearest magistrate within a period of 24 hours of arrest.
Such a person has the right to consult a lawyer or engage a lawyer for his defence.
Right against Exploitation:
Once the right to liberty and equality is granted, it follows that every citizen has a right not to be exploited.
Yet the Constitution makers thought it was necessary to write down certain clear provisions to prevent exploitation of the weaker sections of the society.
The Constitution mentions three specific evils and declares these illegal:
- The Constitution prohibits traffic in human beings’ Traffic here means selling and buying of human beings, usually women, for immoral purposes.
- Our Constitution also prohibits forced labour or beggar in any form. Begar is a practice where the worker is forced to render service to the ‘master’ free of charge or at a nominal remuneration. When this practice takes place on a life-long basis, it is called the practice of bonded labour.
- The Constitution also prohibits child labour. No one can employ a child below the age of fourteen to work in any factory or mine or in any other hazardous work, such as railways and ports. Using this as a basis many laws have been made to prohibit children from working in industries such as beedi making, firecrackers and matches, printing and dyeing.
Right to Freedom of Religion:
India is a secular State. The constitutions confer on the people of India the following freedoms:
- To follow any religion of their choice,
- To practise it according to their specific ways, and
- To preach it
Freedom to practice religion does not mean that a person can do whatever he wants in the name of religion.
For example, one cannot sacrifice animals or human beings as offerings to supernatural forces or gods.
Religious practices which treat women as inferior or those that infringe women’s freedom are not allowed.
For example, one cannot force a widowed woman to shave head or wear white clothes.
A secular state is one that does not confer any privilege or favour on any particular religion.
Nor does it punish or discriminate against people on the basis of religion they follow.
Thus the government cannot compel any person to pay any taxes for the promotion or maintenance of any particular religion or religious institution.
There shall be no religious instruction in the government educational institutions.
In educational institutions managed by private bodies no person shall be compelled to take part in any religious instruction or to attend any religious worship.
Cultural and Educational Rights:
All groups, sects, and linguistic minorities in the country have been granted the right to safeguard their culture, language and script.
They can open their own educational institutions for this purpose and can teach their tuitions for this purpose and can teach their children accordingly.
But it has been made obligatory on such institutions to give admission to any student desirous of joining them Such students could not be forced to learn what does not fit in their own cultural frame work.
That is why the Constitution specifies the cultural and educational rights of the minorities:
Any section of citizens with a distinct language or culture has a right to conserve it.
Admission to any educational institution maintained by government or receiving government aid cannot be denied to any citizen on the ground of religion or language.
All minorities have the right to establish and administer educational institutions of their choice.
Here minority does not mean only religious minority at the national level.
In some places people speaking a particular language are in majority, people speaking a different language are in a minority.
For example, Telugu speaking people form a majority in Andhra Pradesh.
But they are a minority in the neighbouring State of Karnataka.
Sikhs constitute a majority in Punjab.
But they are a minority in Rajasthan, Haryana and Delhi.
Right to Constitutional Remedies:
This it is a Fundamental Right.
This right makes other rights effective.
It is possible that sometimes our rights may be violated by fellow citizens, private bodies or by the government.
When any of our rights are violated we can seek remedy through courts.
If it is a Fundamental Right we can directly approach the Supreme Court or the High Court of a state.
That is why Dr. Ambedkar called the Right to Constitutional Remedies. “the heart and soul” of our Constitution.
How can we secure these rights?
Fundamental Rights are guaranteed against the actions of the Legislatures, the Executive, and any other authorities instituted by the government.
There can be no law or action that violates the Fundamental Rights.
If any act of the Legislature or the Executive takes away or limits any of the Fundamental Rights it will be invalid.
We can challenge such laws of the central and state governments, the policies and actions of the government or the governmental organisations like the nationalised banks or electricity boards.
Courts also enforce the Fundamental Rights against private individuals and bodies.
The Supreme Court and High Court have the power to issue directions, orders or writs for the enforcement of the Fundamental Rights.
They can also award compensation to the victims and punishment to the violators.
We have already seen in Chapter Five that the judiciary in our country is independent of the government and the Parliament.
We also noted that our judiciary is very powerful and can do whatever is needed to protect the rights of the citizens.
In case of any violation of a Fundamental Right the aggrieved person can go to a court for remedy.
But now, any person can go to court against the violation of the Fundamental Right, if it is of social or public interest.
It is called Public Interest Litigation (PIL).
Under the PIL any citizen or group of citizens can approach the Supreme Court or a High Court for the protection of public interest against a particular law or action of the government.
One can write to the judges even on a postcard.
The court will take up the matter if the judges find it in public interest.
National Human Rights Commission:
The NHRC cannot by itself punish the guilty.
That is the responsibility of courts.
The NHRC is there to make independent and credible inquiry into any case of violation of human rights.
It also inquiries into any case of abetment of such violation or negligence in controlling it by any government officer and takes other general steps to promote human rights in the country.
The Commission presents its findings and recommendations to the government or intervenes in the court on behalf of the victims.
It has wide ranging powers to carry out its inquiry.
Like any court it can witness question any government official, demand any official paper, visit any prison for inspection or send its own team for on-the-spot inquiry.
Any citizen of India can write a letter to this address to complain against the violation of human rights.
National Human Rights Commission, Faridka House, Copernicus Marg, New Delhi 11000.
There is no fee or any formal procedure to approach the NHRC.
Like NHRC, there are State Human Rights Commissions in 23 states of the country (as on 1 September 2013)
Expanding scope of rights:
Fundamental Rights granted by the Constitution are the only rights citizen have.
This is not true.
While Fundamental Rights are the source of all rights.
Our Constitution and law offers a wider range of rights.
Over the years the scope of rights has expanded.
Sometimes it leads to expansion in the legal rights that the citizen can enjoy.
From time to time, the courts gave judgments to expand the scope of rights.
Certain rights like right to freedom of press, right to information, and right to education are derived from the Fundamental Rights.
Now school education has become a right for Indian citizens.
The governments are responsible for providing free and compulsory education to all children up to the age of 14 years.
Parliament has enacted a law giving the right to information to the citizens.
This Act was made under the Fundamental Right to freedom of thought and expression.
We have a right to seek information from government offices.
Recently the Supreme Court has expanded the meaning of the right to life to include the right to food.
Also, rights are not limited only to Fundamental Rights as enumerated in the Constitution.
Constitution provides many more rights, which may not be Fundamental Rights.
For example the right to property is not a Fundamental Right! but it is a constitutional right.
Right to vote in elections is an important constitutional right.
The expansion takes place in what is called human rights.
These are universal moral claims that may or may not have been recognised by law.
With the expansion of democracy all over the world, there is greater! pressure on governments-to accept these claims.
Some International covenants have also contributed to the expansion of rights.
International Covenant on economic, social and cultural rights:
This international covenant recognises many rights that are not directly a part of the Fundamental Rights in the Indian Constitution. This has not yet become an international treaty. But human right activists all over the world see this as a standard of human rights. These include
Right to work: opportunity to everyone to earn livelihood by working.
Right to safe and healthy working conditions, fair wages that can provide decent standard of living for the workers and their families.
Right to adequate standard of living including adequate food, clothing and housing.
Right to social security and insurance.
Right to health: medical care during illness, special care for women during childbirth and prevention of epidemics.
Right to education: free and compulsory primary education, equal access to higher education.
Thus the scope of rights has been expanding and new rights are evolving over time. They are result of struggle of the people. New rights emerge as societies develop or as new constitutions are made. The Constitution of South Africa guarantees its citizens several kinds of new rights:
Right to privacy, so that citizens or their home cannot be searched, their phones cannot be tapped, their communication cannot be opened.
Right to an environment that is not harmful to their health or wellbeing:
Right to have access to adequate housing.
Right to have access to health care services, sufficient food and water: no one may be refused emergency medical treatment.
Many people think that the right to work, right to health, right to minimum livelihood and right to privacy should be made fundamental rights in India as well.
