The Cornerstone of Democracy: Importance of Rights
A constitution does more than simply describe the framework of government and the relationship among its organs. As the supreme legal document, it plays a crucial role by setting clear restrictions on the powers of the state. These limits are essential for the effective functioning of democracy, as they guarantee that citizens can enjoy their fundamental rights and freedoms without arbitrary interference from the authorities.
The Bill of Rights: Safeguarding Liberties
As we all know it is not enough to merely declare rights; there must also be mechanisms for their enforcement. This is why most democratic constitutions contain a bill of rights—an explicit list of guaranteed protections.
A constitution shields individuals from two types of threats. First, rights may be violated by other individuals or private organizations, in which case state protection is necessary. Second, and more seriously, rights can be infringed upon by the very institutions of government—whether legislature, executive, administration, or judiciary. The bill of rights acts as a safeguard, preventing the government from acting against individual freedoms and ensuring remedies are available when violations occur.
The ‘Fundamental’ Distinctions.
The rights enshrined in the Indian Constitution are termed “Fundamental” because of their exceptional significance. They are considered so essential that the Constitution lists them separately and provides special safeguards for their protection. This framework ensures that the government itself is restricted from infringing upon them.
What sets Fundamental Rights apart from ordinary legal rights is their higher level of protection. Regular legal rights are created and upheld through ordinary laws, meaning they can be altered or repealed by the legislature in the usual law-making process. In contrast, Fundamental Rights are directly guaranteed by the Constitution. Changing them requires a constitutional amendment—a far more rigorous and formal procedure. Moreover, no government body, whether legislative, executive, or judicial, is allowed to act in a way that violates these rights. This distinction underlines the principle of constitutional supremacy, placing citizens’ core freedoms above temporary or shifting political decisions.
Fundamental Rights in the South African Constitution
A striking global example of a strong Bill of Rights can be found in the South African Constitution of 1996, framed after the fall of the Apartheid regime. This Constitution refers to its Bill of Rights as the “cornerstone of democracy” and grants citizens a broad spectrum of protections. It explicitly bans discrimination on multiple grounds, such as race, gender, religion, and social origin.
The South African Bill of Rights also ensures rights such as dignity, privacy, a clean environment, adequate housing, access to healthcare, food and water, and both basic and higher education. To safeguard these rights effectively, South Africa established a special Constitutional Court with the authority to enforce them.
The Six Pillars of Liberty: The Fundamental Rights Explained
The Indian Constitution lists six categories of Fundamental Rights. These rights are not absolute and can have reasonable restrictions placed upon them by the government.
Right to Equality (Articles 14-18)
This right seeks to remove discrimination and uphold the dignity and equal status of every citizen. It embodies the principle of equality before the law, which means that all individuals are governed by the same set of laws without any special privileges. Alongside this, it guarantees equal protection of the laws, requiring the state to treat people in similar circumstances alike.
The Right to Equality specifically prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. As a result, all citizens are assured equal access to public facilities such as shops, hotels, wells, bathing ghats, and places of worship. In India, this right carries special importance due to the country’s long history of social inequalities. It also ensures fairness in matters of public employment by forbidding discrimination based on the same criteria.
One of the strongest expressions of this right is the abolition of untouchability, which had been a deeply entrenched form of social injustice. The Constitution also bars the state from conferring titles upon individuals, except those granted in recognition of military or academic accomplishments.
Importantly, the Constitution acknowledges that simply treating everyone the same does not automatically create equality in a society marked by deep-rooted disparities. To address this, Article 16(4) allows the government to adopt special provisions such as reservations for socially and educationally disadvantaged groups, women, and children. These measures are not seen as a breach of the Right to Equality but rather as essential tools for achieving genuine equality of opportunity across different sections of society.
Right to Freedom (Articles 19-22)
The Right to Freedom forms the backbone of any democratic system. Liberty here implies the freedom of thought, expression, and action. Yet, this freedom is not absolute—individuals cannot act without limits, as unrestricted liberty would threaten the rights of others and disrupt public order. For this reason, freedoms are defined in a way that ensures every person can enjoy them without encroaching upon another’s liberty.
Article 19: Six Freedoms
Article 19 of the Indian Constitution grants six key freedoms to citizens, though each is subject to reasonable restrictions imposed by the state:
- Freedom of speech and expression
- Freedom to assemble peacefully and without arms
- Freedom to form associations or unions
- Freedom to move freely across India
- Freedom to reside and settle in any part of the country
- Freedom to practice any profession, or to carry on any trade, occupation, or business
Article 21: Right to Life and Personal Liberty
Among all freedoms, the most fundamental is the Right to Life and Personal Liberty (Article 21). It ensures that no person can be deprived of life or liberty except through a procedure established by law. Over time, the Supreme Court has expanded its interpretation, holding that this right includes not just protection from arbitrary deprivation of life but also the right to live with dignity, the right to shelter, and the right to livelihood—essentials for a meaningful human existence.
Preventive Detention
A contentious aspect connected to Article 21 is preventive detention, which allows authorities to detain an individual for up to three months on the suspicion that they may commit an unlawful act, even before any offense is committed. Although intended to curb anti-social behavior, this provision significantly restricts personal liberty and has often faced criticism for misuse by governments.
Safeguards for Fair Trial
The Constitution also guarantees safeguards for those accused of crimes, recognizing the principle that a person is presumed innocent until proven guilty. To uphold justice, it provides several rights ensuring a fair trial, which protect individuals against arbitrary punishment and safeguard due process. Rights are:
- Protection from double jeopardy: No person can be punished for the same offense more than once.
- Protection from retroactive laws: No law can declare an action illegal from a backdate.
- Protection from self-incrimination: No person can be compelled to give evidence against themselves.1
A Note from the Constituent Assembly:
Somnath Lahiri, a member of the Constituent Assembly, expressed his dissatisfaction with the restrictions on rights, stating: ““I feel that many of these fundamental rights have been framed from the point of view of a police constable… you will find that very minimum rights have been conceded and are almost invariably followed by a provison. Almost every article is followed by a proviso which takes away the right almost completely,……What should be our conception of fundamental rights?…We want to incorporate every one of those rights which our people want to get”.
Right against Exploitation (Articles 23-24)
This right is designed to protect underprivileged and deprived individuals from exploitation by others. It prohibits two major forms of exploitation:
- Prohibition of human trafficking and forced labor: The Constitution forbids the buying and selling of human beings and forced labor, including begar, and declares these to be punishable crimes.
- Prohibition of child labor: The Constitution forbids the employment of children below the age of 14 in dangerous jobs, such as those in factories and mines.
With the recent expansion of the Right to Education as a Fundamental Right for children, the Right against Exploitation has become even more meaningful, as it works to ensure a safe and secure future for children.
Right to Freedom of Religion (Articles 25-28)
Freedom of Religion
Freedom of religion is one of the defining features of democracy. In a diverse country like India, with multiple faiths, this right is vital. It allows every person to choose and follow any religion—or even none at all. This includes freedom of conscience as well as the right to profess, practice, and propagate one’s faith. The right to propagate extends to sharing knowledge about one’s religion, but it does not permit forcible conversions, which are widely opposed.
Like other rights, this freedom is not unlimited. It can be restricted on grounds of public order, morality, and health. For instance, the state can regulate or abolish harmful social practices such as sati or bigamy, even if such practices are defended on religious grounds.
Another core principle is the equality of all religions. India has no official state religion, which means the state is required to treat all faiths equally. The government cannot promote one religion over another, nor can it discriminate in employment or in running public institutions based on religion. This principle of neutrality is central to maintaining secularism in India.
Cultural and Educational Rights (Articles 29–30)
India’s diversity is one of its greatest strengths. To safeguard this diversity, the Constitution grants special rights to minorities—groups defined by their smaller numbers in terms of language or religion. These rights allow minorities to preserve and develop their unique language, script, and culture.
During the Constituent Assembly debates, Sardar Hukam Singh emphasized that the safety of minorities rests in a secular state. He urged the majority to understand the fears of minorities regarding language, culture, and services, and not to overlook their concerns.
Both religious and linguistic minorities are also entitled to establish and administer their own educational institutions. This helps them preserve their identity while contributing to the broader society. The Constitution further guarantees that minority-managed institutions will not be denied government aid simply because they are run by minority communities.
Sardar Hukam Singh has put it very beautifully in constituent assembly debates that “A heavy responsibility would be cast on the majority to see that in fact the minorities feel secure. …the only safety for the minorities lies in a secular State. It pays them to be nationalists …The majority community should not boast of their national outlook. …They should try to place themselves in the position of the minorities and try to appreciate their fears. All demands for safeguards…are the products of those fears that the minorities have in their minds, …as regards their language, their script and also about the services.”
Right to Constitutional Remedies (Article 32)
Simply listing rights is not enough; they must also be enforceable. The Right to Constitutional Remedies gives substance to all Fundamental Rights by allowing citizens to directly approach the Supreme Court or High Courts if their rights are violated. Dr. B.R. Ambedkar described this provision as the “heart and soul of the Constitution.”
To enforce these rights, courts have the authority to issue special orders, known as writs, which ensure that citizens’ liberties are upheld in practice. This mechanism makes Fundamental Rights not just ideals on paper, but living guarantees.
The details of five such writs are :
- Habeas Corpus: This writ is a powerful tool against unlawful arrest. It orders that an arrested person be presented before the court, which can then order their release if the arrest is found to be unlawful.
- Mandamus: This writ is a command issued by a court to a public official or a public authority. It is used when the official is not performing a legal duty and is thereby infringing on an individual’s rights. The writ orders the official to perform their duty.
- Prohibition: A higher court issues this writ to a lower court to prevent it from proceeding with a case that is beyond its lawful jurisdiction.
- Quo Warranto: This writ is used to challenge a person’s authority to hold a public office. If the court finds that a person is not legally entitled to hold a particular office, it can issue this writ to restrict them from acting in that capacity.
- Certiorari: This writ is an order from a higher court to a lower court or authority. It instructs the lower body to transfer a matter that is pending before it to the higher court for review.
The Broader Constitutional Framework
Directive Principles of State Policy
The framers of the Constitution recognized that newly independent India would face many social and economic challenges. They included a set of policy guidelines known as the Directive Principles of State Policy to guide future governments in addressing these issues. Unlike Fundamental Rights, the Directive Principles are non-justiciable, which means they are not legally enforceable by a court. If a government fails to implement one of these principles, a citizen cannot sue the government to compel its action.
The Directive Principles broadly contain three types of provisions:
- Goals and objectives for society, such as promoting the welfare of the people, achieving social and economic justice, and raising the standard of living.
- Certain rights that individuals should enjoy in addition to the Fundamental Rights, such as the right to an adequate livelihood and equal pay for equal work.
- Certain policies that the government should adopt, such as a uniform civil code, the prohibition of liquor consumption, and the promotion of cottage industries and village panchayats.
Over time, governments have made efforts to implement many of these principles by passing laws such as those for the abolition of the zamindari system, the nationalization of banks, and the provision of reservations for backward classes.
Relationship between Fundamental Rights and Directive Principles
The Fundamental Rights and Directive Principles can be seen as two complementary sides of a single coin. Fundamental Rights act as a restraint on the government, preventing it from doing certain things, while Directive Principles exhort the government to do certain things. Fundamental Rights are primarily concerned with the rights of individuals, while the Directive Principles focus on the well-being of the entire society.
However, this complementary relationship has, at times, led to conflict. A major legal and political battle arose when the government attempted to implement land reforms (a Directive Principle) that required taking away property, which was then a Fundamental Right. The government argued that the rights of individuals could be limited for the greater good of society, while the judiciary maintained that Fundamental Rights were sacred and could not be limited even for implementing the Directive Principles.
This long-running controversy was ultimately settled by the Supreme Court in the landmark Kesavananda Bharati case in 1973. The court introduced the doctrine of the basic structure of the Constitution, ruling that while Parliament has the power to amend the Constitution, it cannot change or destroy its fundamental or basic features, which include the Fundamental Rights. This decision effectively established the judiciary as the ultimate guardian of the Constitution.
The Right to Property Controversy
The conflict between Fundamental Rights and Directive Principles was most pronounced in the case of the Right to Property. The Constitution originally listed the right to “acquire, possess and maintain” property as a Fundamental Right. However, it also gave the government the authority to take away property for public welfare, such as for land reform and redistribution. This led to numerous laws that were challenged in court as violations of the Right to Property. The legal conflict lasted for decades.
Finally, in 1978, the 44th Amendment to the Constitution removed the Right to Property from the list of Fundamental Rights and reclassified it as a simple legal right under Article 300A. This change in status means that while the government cannot confiscate a person’s property arbitrarily without a legal procedure, the right is no longer protected by the stringent constitutional safeguards of the Fundamental Rights. Parliament can now more easily legislate to limit this right in the interest of social welfare, which makes the implementation of policies related to land reform much simpler.
Fundamental Duties of Citizens
In 1976, the 42nd Amendment to the Constitution added a list of ten Fundamental Duties for citizens. These duties include upholding the Constitution, defending the country, promoting harmony, and protecting the environment. A crucial point to note is that the Constitution does not make the enjoyment of Fundamental Rights dependent or conditional upon the fulfillment of these duties. The inclusion of these duties, while encouraging civic responsibility, has not altered the fundamental status or enforceability of the rights of citizens.
The Guardians of Rights: Role of Institutions
The Judiciary as the Protector
The judiciary plays a pivotal role in the protection of Fundamental Rights. It has the powers and responsibility to protect these rights from violations by the actions of the government. This is a powerful check on government power, as the judiciary can declare any executive or legislative action illegal if it is found to violate or unreasonably restrict the Fundamental Rights.
Through various judgments, the judiciary has also expanded the scope of these rights over time. For example, the Supreme Court has interpreted the Right to Life to include the rights to live with human dignity and to have access to shelter and livelihood, thereby giving the right a much wider application and making it relevant to the lives of many more people.
The National Human Rights Commission (NHRC)
While the judiciary is the primary enforcer of rights, other institutions have also been created to protect human rights. The National Human Rights Commission (NHRC) was established in 1993 as a watchdog institution. It is composed of a former Chief Justice of the Supreme Court, a former Supreme Court judge, a former Chief Justice of a High Court, and other members with practical experience in human rights.
The NHRC’s functions include inquiring into complaints of human rights violations, visiting jails to study the conditions of inmates, and promoting research in the field of human rights. It has been instrumental in intervening in cases of custodial death, police excesses, and the disappearance of individuals. For example, the NHRC’s intervention was crucial in securing the release of Machal Lalung, who had been held in custody for 54 years without a trial.
It is important to understand that the NHRC is not a court and does not have the power to prosecute. It can only make recommendations to the government or suggest to the courts that they initiate proceedings based on its inquiries.1 This shows that while the NHRC is a vital mechanism for highlighting rights violations, the ultimate power to enforce a remedy lies with the judiciary.
Conclusion
The writings of Jotirao Phule (1827–1890), a pioneering social reformer from Maharashtra, contain some of the earliest assertions that rights must encompass both freedom and equality. During India’s national movement, this understanding of rights was broadened and transformed into the idea of constitutional rights. The Indian Constitution, drawing from this long intellectual and social tradition, incorporated these principles by listing the Fundamental Rights.
Since the adoption of the Constitution in 1950, the judiciary has played a crucial role as the guardian of these rights. Through its interpretations, the courts have significantly widened their scope and meaning. This constitutional framework ensures that the government and its administration operate within defined limits, with rights acting as checks on state power to guarantee the democratic functioning of the nation.
