The chapter notes present several real-world examples that help students envision what it might be like to live without rights. Additionally, we analyse the definition of rights and why they are necessary. The notes also examine the Indian Constitution's Fundamental Rights.
Additionally, we learn about rights extension, how an average person can exercise these rights, and who will safeguard and enforce them.
What Are Democratic Rights?
Democratic Rights are the rights that are necessary for a well-functioning democracy. These include the right to take part in electing the Government and the right to access and participate in the public service. There is also a corresponding duty of responsible citizenship, which involves a willingness to play a part in public affairs and to respect the rights and freedoms of others.
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 the American Navy.
The American government said that they were enemies of the US and linked it to the attack on New York on 11 September 2001. The governments of their countries were not asked or even informed about their imprisonment.
The family of prisoners got to know that they were in that prison only through the media. Families of prisoners, media or even UN representatives were not allowed to meet them.
The US army arrested them, interrogated them and decided whether to keep them there or not. Without any trial Nor could these prisoners approach courts in their own country.
What is Amnesty International?
Amnesty International is 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 case of Guantanamo Bay looks like an exception, for it involves the government of one country denying rights to citizens of another country.
Therefore look at the case of Saudi Arabia and the position of the citizens with regard to their government. 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 was 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 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
“Where are your children?” “… they shot Izet three times in the chest” recalls Batisha. With her husband dying before her, the soldiers pulled the wedding ring off her finger and told her to get out. “I was not even outside the gate when they burnt the house” … She was standing on the street in the rain with no house, no husband, no possessions but the clothes she was wearing.
This news report was typical of what happened to thousands of Albanians in that period.
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 elections. 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 reasonable claims of persons recognised by society and sanctioned by law.
● Rights are claims of a person over other fellow beings, over the society and over the government.
● A right is possible when you make a claim that is equally possible for others.
● The claims should be reasonable. They should be such that they can be made available to others in an equal measure.
● Claims are not Right. Just because we claim something it does not become our right. A right comes with an obligation to respect other rights. It has to be recognised by the society we live in.
● In a society rights acquire meaning. Every society makes certain rules to regulate our conduct. They tell us what is right and what is wrong.
● The Rightful recognition made by the society becomes the basis of rights. The notion of rights changes from time to time and society to society.
(Two hundred years ago anyone who said that women should have the right to vote would have sounded strange. Today not granting them a vote in Saudi Arabia appears strange.)
● The socially recognised claims acquire real force when they are written into the Law. Otherwise they remain merely as natural or moral rights.
● 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.
Why do we need rights in a Democracy?
● Rights are necessary for the very sustenance of a democracy. In a democracy every citizen has to have the right to vote and the right to be elected to the government.
● Citizens should have the right to express their opinion, form political parties and take part in political activities. Then only Democratic Elections can take place.
● Rights also perform a very special role in a democracy: they protect minorities from the oppression of the majority.
● Rights are guarantees which can be used when things go wrong. They ensure that the majority cannot do whatever it likes.
● 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.
● The government should protect the ‘citizens’ rights. But sometimes elected governments may not protect or may even attack the rights of their own citizens.
● That is why some rights need to be placed higher than the government, so that the government cannot violate them.
What are Fundamental Rights?
● Rights mentioned in the constitution which are fundamental to our life and give special status are called Fundamental Rights.
● Fundamental Rights states between Artciles 12-35 are the basic important features of the Indian constitution as It talks about securing for all its citizens equality, liberty and justice.
There are six fundamental rights in our constitution:
1. Right to Equality
2. Right to Freedom
3. Rights Against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights
6. Right to Constitutional Remedies
1. 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 a 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. There 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.
Implications of the Right to 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.
● There shall be no restriction with regard to the use of wells, tanks, bathing ghats, roads, playgrounds and places of public resorts maintained by the government or dedicated to the use of the general public.
● 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.
● 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.
● Different schemes for giving preference to women, poor or physically handicapped in some kinds of jobs are also there.
● Therefore 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.
● It is necessary to give special treatment to someone in order to ensure equal opportunity. This is what job reservations do.
● The Constitution mentions one extreme form of social discrimination, the practice of untouchability which should be abolished.
● The practice of untouchability has been forbidden in any form. Untouchability here does not only mean refusal to touch people belonging to certain castes.
The Constitution made untouchability a punishable offence.
2. 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.
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
● Practice any profession, or to carry on any occupation, trade or business.
Freedom cannot be exercised in such a manner that violates other Fundamental rights. An Individual’s freedoms should not cause public nuisance or disorder.
The government can impose certain reasonable restrictions on our freedoms in the larger interests of the society Freedom of speech and expression is one of the essential features of any democracy.
Freedom to think differently is also where an individual can criticise the government and one may publicise his views through journals, magazines etc. One can do it through paintings, poetry or songs. This freedom must not be used to instigate violence against others. Neither to defame others by saying false and mean things that cause damage to a person’s reputation.
Citizens have the freedom to hold peaceful 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.
Freedom to travel to any part of the country and reside and settle in any party of the territory of India. 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 of occupations are not for them. People from deprived castes cannot be kept to their traditional occupation.
Right to Freedom includes Right of Life or Personal liberty
● 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 cannot 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.
3. Rights Against Exploitation
● Once the right to liberty and equality is granted, it follows that every citizen has a right not to be exploited.
● The Constitution mentions three specific evils and declares these illegal.
● First, the Constitution prohibits ‘traffic in human beings’. Traffic here means selling and buying of human beings, usually women, for immoral purposes.
● Second, our Constitution also prohibits forced labour or Bonded labour in any form.
● Finally, the Constitution also prohibits child labour.
● 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.
4. Right To Freedom of Religion
Right to freedom includes the right to freedom of religion as well as India is a secular nation as well.
● Secularism is based on the idea that the state is concerned only with relations among human beings, and not with the relation between human beings and God.
● A secular state is one that does not establish any one religion as an official religion. Indian secularism practises an attitude of a principled and equal distance from all religions.
● The state has to be neutral and impartial in dealing with all religions. Every person has a right to profess, practice and propagate the religion he or she believes in.
● Every religious group or sect is free to manage its religious affairs. A right to propagate one’s religion, however, does not mean that a person has the right to compel another person to convert into his religion by means of force, fraud, inducement or allurement.
● Religious practices which treat women as inferior or those that infringe women’s freedom are not allowed.
● A secular state is one that does not confer any privilege or favour on any particular religion.
● 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.
5. Culture And Educational Rights
Why are there no special guarantees for the majority?
● The simple reason is that the working of democracy gives power to the majority. It is the language, culture and religion of minorities that needs special protection.
● They may get neglected or undermined otherwise under the impact of the language, religion and culture of the majority.
● That is why the Constitution specifies the cultural and educational rights of the minorities
● Any section of citizens with a distinct language or culture have a right to conserve it.
● Admission to any educational institution 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.
6. Right to Constitutional Remedies
The fundamental rights in the Constitution are important because they are enforceable. The right to seek the enforcement of the rights is called the Right to Constitutional Remedies.
Right to Constitutional Remedies empowers the citizens to move to a court of law in case of any denial of the fundamental rights
● 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.
● The Right to Constitutional Remedies is ‘the heart and soul’ of our Constitution.
● Fundamental Rights are guaranteed against the actions of the Legislatures, the Executive, and any other authorities instituted by the government no law can violate 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..
● The Supreme Court and High Courts 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.
● 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.
Expanding Scope Of Rights
● Fundamental Rights are not the only Rights provided by the Constitution. They are the source of all rights
● The scope of rights has expanded over the years. Sometimes it leads to expansion in the legal rights that the citizen can enjoy. Certain rights like right to freedom of press, right to information, and right to education are derived from the Fundamental Rights, school education has also 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.
● 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.
● The 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. Sometimes 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.
● 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. Thus the scope of rights has been expanding and new rights are evolving over time.
Rights South African Constitution Guarantees other than Fundamental 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.