Fundamental Rights ( Part -3)
‘Judiciary deduced rights’ or inferred rights' or derived rights'
In recent years, courts have been expanding the scope of the Right to life and liberty. Art. 21 has been enriched in a number of cases to safeguard the rights of different sections of the society. The Article has been invoked to give right to elementary education, protect the rights of prisoners, the rights of inmates of protective homes, right to legal aid, right to speedy trial, right of release and rehabilitation of bonded labour, right to health, and right to healthy environment.
In Francis Coralie vs. Union Territory of Delhi [(1981) former Chief Justice of India, P.N. Bhagwati said “..the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter...."
Relying on Francis Coralie, in Bandh'ua Mukti Morcha vs. Union of India (1984) where the question of bondage and rehabilitation of some labourers was involved, Justice Bhagwati observed:
“It is the fundamental right of everyone in this country... to live with hum^n dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Art. 39 and Articles 41 and 42 and... therefore, it must include protection of the health and strength of the workers, men and women and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.”
In 1993, the Supreme Court held in J. P. Unnikrishnan case that Right to Education is a fundamental right as the objectives set forth in the Preamble to the Constitution can be achieved only when education is provided to the citizens of this country; Part 111 (FRs) and IV (Directive Principles of State Policy) are supportive of each other. Unless the right to education is.made a reality, the fundamental rights in Part 111 will remain beyond the reach of the illiterate majority.
Over the years, SC expanded the scope of Art.21 by including many rights in it like the following:
Euthanasia and Aruna Shanbaug case
In 2011, Supreme Court while responding to the plea to enc^ the life( mercy killing or euthanasia) Aruna who was sexually assaulted and attacked and was driven into a vegetative state , made by activist-journalist -Pinki Virani, turned down the mercy killing petition . The court, in its landmark judgement, however allowed passive euthanasia in India.
While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live. Active euthanasia means killing by injecting poison.
Right to Education
(Read along with the material given above as a part of Art.15)
Acharya Ramamurti Committee in 1990 recommended that the right to education should be included as a fundamental right in Part III of the Constitution.
In 1992, Supreme Court held in Mohini Jain v State of Karnataka, that the”‘right to education’ is a part of right to life (Art.21) and thus is a Fundamental Right enshrined under Part III of the Constitution”
The Supreme Court judgement in the case of Unnikrishnan, J P v State of Andhra Pradesh further reinforced the same when it affirmed that right to education flows from the right to life guaranteed under Article 21 and draws its support from the Directive Principles of the Constitution, Article 41 and 45. Art.41 provides for right to education. Article 45 of the Constitution originally required state to make provisions within 10 years for free and compulsory education for all children until they complete the age of 14 years. It has been replaced by the 86th Amendment Act.
86th Constitutional Amendment Act 2002 brought about the following changes to the Constitution
NCRWC recommended that the inferred rights be given explicit status.
The above inferred rights- deriving from the court verdicts are positive rights- the State has an obligation to provide them- water, environment,education,health,work etc. That is very significant. No less significant however are the negative rights- rights that require the State to be inactive- for example, right to freedom of speech and expression. The State should allow these rights to be exercised and not interfere unless required.
Right to personal liberty broadly includes
Right to privacy
In India, the Constitution does not expressly recognize the right to privacy. The concept of privacy as a fundamental right first evolved in 1964 in the case of Kharak Singh v State of Uttar Pradesh. The Supreme Court, for the first time, recognized that there is a right of privacy implicit in the Indian Constitution under Article 21 . The Court held that the Right to Privacy is an integral part of the Right to Life. InR.Rajagopal v State of TN (1994) the Supreme Court held that the right to privacy is a right to be let alone.
In recent years, partly due to rise of the new social media and for public order and national security reasons as well, right to privacy has come under pressure. The following are some judicial verdicts and government laws followed by certain analytical points.
Another dimension is the conflict between the right to information(RTl) and the right to privacy.
The Indian Telegraph Act is a 125-year-old law, which has stood the scrutiny of time. It allows interception of telecommunications only on the occurrence of any ’public emergency’ or in the ’interest of public safety’. Only when either of these two conditions are satisfied, can the competent authority permit the interception of telephonic communications, if it is in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence. If any of these conditions are not satisfied, telephonic interceptions are unconstitutional.
In 1996, in the People’s Union of Civil Liberties (PUCL) case, the Supreme Court reaffirmed the above law. The right to privacy, even though not constitutionally provided for, has been now read as an essential ingredient of personal liberty. Privacy gives one the right to be left alone. Telephonic communications have been elevated to the right of free speech and expression.Interception thus is a violation of Art. 19. la though it can be reasonably restricted.
What are the obligations of the state, once it is in possession of the intercepted material? The 1885 Telegraph Act does not deal with this subject at all. Ordinarily, it would stand to reason that the intercepted material can only be used for the purpose for which the interception was ordered. The Supreme Court, in the PUCL judgment, has held that the competent authority, while passing the order permitting the interception, must state thereupon as to how the intercepted material is to be dealt with.
The intercepted materials' disclosures are neither prohibited nor can at present be penalised. It is expected that the same would be available with the relevant departments of the government and a legitimate disclosure of the same could be made either through the R.TI Act or through an investigative process if the same are utilised for that purpose. If the material intercepted deals with matters concerning the affairs of the state, unauthorised intervention in the functioning of a government or commission of an offence, it could be handed over to the competent authority dealing with the matter.
However, if the conversations so tapped are private in nature and have no bearing whatsoever on the functioning of the state, it would ordinarily be expected from the competent authority to direct that such conversations or intercepts be maintained in absolute secrecy and its disclosure and use is prohibited.
Here the interplay of public interest, right to privacy and right to information can be seen and it is necessary to balance the three on a case by case .basis.
Those who seek to interfere in the matters of the state and influence decisions concerning the state of play in the political arena are hardly expected to contend that a cloak of secrecy be maintained around their roles. They may have a right to privacy in relation to their private lives but not in relation to activities which are wholly political or related to the public affairs of the state.
The above arguments are relevant to the Nira Radia episode where the telephonic conversations were secretly recorded.
Justice A. P. Shah panel on right to privacy
A Committee headed by J. AP Shah dealing comprehensively with the law of privacy submitted its report recently to the Planning Commission . The object of this report was to provide recommendations on the right to privacy in the context that the information that the government has access to about its citizens has considerably increased with the rise of the digital age.
It has recommended an over-arching law to protect privacy and personal data in the private and public spheres.The report also suggested setting up privacy commissioners, both at the Central and State levels.lt has spelt out nine national privacy principles that could be followed while framing the law.
The report comes at a time when there is growing concern over unique identity numbers, DNA profilingrbrain-mapping, etc, most of which will be implemented on the ICT platform.
The report has listed certain exceptions in the right to privacy such as national security, public order, disclosure in public interest, prevention, detection, investigation and prosecution of criminal offences and protection of the individual or of the rights of freedom of others.
In certain cases, historical or scientific research and journalistic purposes can also be considered as exceptions, says the report.
Referring to social networking sites and search engines, which have their own privacy code, Justice Shah said these will either have to follow the model provided in the proposed Act or have a self-regulatory mechanism approved by the privacy commissioner.
The report suggests harmonising the proposed privacy Act with the RTl Act. Responding to privacy infringement concerns, as aired by the Prime Minister recently, Justice Shah said RTI was the only law that gave statutory protection to privacy, which could be over-ridden only in certain cases for individuals, not companies.
Livetn relationship: Art.21
In an verdict in 2010, the apex court held that live-in-relation is a part of Art.21
The apex court made the observation while reserving its judgement on a special leave petiton filed by noted south Indian actress Khusboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-maritiaf sex in interviews to various magazines in 2005.Khusboo had approached the apex court after the Madrash High Court in 2008 dismissed her plea for quashing the criminal cases filed against her throughout Tamil Nadu.
Article 22:- Protection against arrest and detention in certain cases
Safeguards against Preventive Detention
Parliament may relax the provisions of Art.22 relating to preventive detention. For example, detention for more than 3 months.
The following laws make room for such relaxation: National Security Act, Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) and Prevention of Terrorism Act (POTA) have a provision to detain beyond 3 months. .
Preventive Detention Laws in India
Since independence, the Government of India passed much legislation for preventive detention and there are about forty such laws presently on the statute book in India.
Entry 9 of List I of the Constitution allows Parliament to enact preventive detention laws in national security. Entry 3 of List III of the Constitution of India allows Parliament and state legislatures to pa[ss preventive detention laws in times of peace for “the maintenance of public order or maintenance of supply and services essential to the community.”
Preventive Detention Act.was passed by Parliament in 1950. After the expiry of this Act in 1969, the Maintenance of Internal Security Act (M1SA) was enacted in 1971, followed by Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA was repealed and TADA lapsed, COFEPOSA continues to be operative along with other similar laws such as the National Security Act (NSA) 1980 and Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Prevention of Terrorism Act (POTA) 2002 was repealed in 2005. Laws with similar provisions are also enacted by the State governments. ' ; i
Terrorist And Disruptive Activities (Prevention) Act (TADA) was passed in 1985. If expired in 1995. The constitutional validity of TADA was challenged before the Supreme Court in 1994, but the Supreme Court upheld its validity. TADA provides for the constitution of designated courts for speedy and expeditious trial of offences. However, under TADA, the conviction rate was less than 10% as witnesses were not protected nor was the evidence in the form of intercepted communications accepted as valid. To overcome these limitations, POTA was made in 2002.
POTA is the Prevention of Terrorism Act, 2002. It was passed by the Parliament in 2002 in a joint sitting of the budget session of the Parliament as Rajya Sabha did not permit it to be introduced. POTA was drafted on lines recommended by the Law Commission and was an improvement over the Terrorist and Disruptive Activities (Prevention) Act (TADA). The safeguards that the Supreme Court prescribed were incorporated to ensure that the potential for abuse is minimised. However, since critics maintained that POTA was draconian and was misapplied and open to abuse, it was repealed in 2005.
Right against Exploitation
Art.23: Prohibition of traffic in human beings and forced labour :-(l) Traffic in human beings -and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
Begar is described as labour or service which a person is forced to give without receiving any remuneration for it. It is also known as 'debt bondage’.
Legislations that is made to check human trafficking is the following
SC on “Missing children”
The landmark judgment of the Supreme Court of India about the missing children in May 2013 will have far reaching impact on the lives of millions of children. This historic judicial verdict was delivered in response to a petition filed by my Indian organization Bachpan Bachao Andolan (BBA) which is the key partner of Global March Against Child Labor.
The Supreme Court ruled for compulsory registration of all cases by police of missing children with the presumption that they are victims of kidnapping and trafficking; preparation of standard operation procedures in all Indian states to deal with such cases; appointment and training of Special Child Welfare Officers at every police station to deal with cases related to missing children; records related to all missing and traced children to be maintained by Ministry of Home Affairs and Police; and provisions for para-legal workers to be present at'every Police station to assist the parents whose child maybe the victim of a crime.
The Honorable Court defined missing children as “a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”
In India one child goes missing every ten minutes as per government records. Complaints for 90,654 missing children were received in 2011 but it was only 15,284 First Information Reports (FIRs) that were eventually registered by the police to investigate various crimes these children were victims of. Unfortunately, the graph of missing children continues to rise. Most are untraced due to their poverty .The metros continue to report the largest number of missing children. Trafficking is a profitable business, with traffickers targeting low-income families. Kailash Sathyarthy of the NGO Bachpan Bacchao Andolan points out: “The maximum number of children being trafficked today belong to dalit, tribal and poor Muslim families that do not have the economic strength to put pressure on the police or political leaders.” Forty per cent of the children said they had been trafficked when they were less than 10 years old.A deep net of organized crime is behind the missing Indian children , according t'o the Central Bureau of Investigation.
Art.24. Prohibition of employment of children in factories, etc.: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Child Labour (Prohibition and Regulation)-Act, 1986 is the legislation to check child labour.
On the recommendation of the Technical Advisory Committee on Child Labour headed by the Director General, Indian Council of Medical Research, the Government ordered ban on employment of children as domestic help or servants at the roadside kiosks in 2006. The ban was imposed by the Labour Ministry under the Child Labour (Prohibition and Regulation) Act, 1986.
Right to Freedom of Religion
Art.25. Subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
Government can make laws for regulating or restricting any economic, financial, political or other secular activity which may be associated with religibus practice; providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
(The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Hindus include persons professing the Sikh, Jaina or Buddhist religion).
In the Jagadiswaranand vs the Police Commissioner 1984 case, the Supreme Court held that the Anand Margi practice of dancing with skulls is not essential to their religion and could be reasonably restricted. Cow slaughter similarly is not considered inherent to Islam on Bakrid day. Thus, State can regulate what constitutes the essential religious practice and what does not and outlaw the latter if it is not social.
Limitations on religious freedom
The limitations on Art.25 are of three types
‘Public order’ is the same as public peace, safety and tranquility. The other limitation is ‘morality’. Health considerations can be explained thus: Haryana legislature disqualified persons having more than two children from holding panchayat posts. It was challenged in the High Court on grounds that it was against personal laws of Muslims. High Court upheld the law on grounds of
The High Court thus ruled(l998) that the provision in question does not interfere with the right to profess, practise or propagate the religion of one’s choice.
Temples may be thrown open to all Hindus which was not the case earlier as some sections were not allowed. It is a measure of social reform.
A person can exercise his religious freedoms while respecting the FRs of others. For example, right to propagate does not include the right to convert others as it means the violation of their right to religious freedom.
The state is empowered to regulate secular activities associated with religious practices with the object to bringing about social reform: activities of an economic, commercial or political character.
Art.25 was further strengthened by the apex court in its April 2013 landmark ruling that directed the gram sabhas to use their powers and take a decision on whether the Vedanta group’s $1.7 - billion bauxite mining project in Odisha’s Niyamgiri Hills can go forward or not. Gram Sabha was given the power to balance the religious rights of Kondhs'against the need for growth and development.
“We are, therefore, of the view that the question whether STs [Scheduled Tribes] and other TFDs [traditional forest dwellers], like Dongria Kondh, Kutia Kandha and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, known asNimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha,” said a three-member Bench in its order.
Art.26. Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
Article 27: No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion.
The Supreme Court (2011) upheld the constitutional validity of central assistance to subsidize air fare for Haj pilgrims.A bench said the amount given as subsidy for Haj was too meagre and could not be termed as a diversion of a major chunk of taxes to violate Article 27 of the Constitution.
Petitioner Prafull Goradia had complained that though he was a Hindu,he had to pay direct or indirect taxes,part of which were utilized by the government to subsidize Haj.Dismissing the petition.the bench said: In our opinion,if only a small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination,that would not be violative of Article 27 of the Constitution.lt would be violated if a substantial part of the tax Collected in India were to be utilized for promotion or maintenance of any particular religion. Nor is the amount spent, collected specifically for Haj subsidy.
The Bench pointed out that the State governments incurred some expenditure for the Kumbh Mela and the Centre, for facilitating Indian citizens to’go on pilgrimage'to Mansarover, etc. Similarly some State governments provided facilities to Hindus and Sikhs to visit temples and gurdwaras in Pakistan. “These are very small expenditures^ in proportion to the entire tax collected. Thus there is no discrimination.
It must be clarified that the order of the apex court in 2012 upheld the Haj subsidy once again as Constitutional but suggested that it be phased out in IQdays as it is wasteful and the same amount b spent ill educational needs'of Muslims.
Cultural and Educational Rights
Article 29: Protection of interests of minorities
Article 30: Right of minorities to establish and administer educational institutions.-
1. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
1(A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority the State shall ensure that the amount fixed will be on market lines.
2. The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Broadly, a linguistic minority is one that speaks a language other than the language spoken by the majority in the State. Partly, linguistic minorities emerged after the states were reorganised on linguistic basis in 1956. For the protection of the linguistic minorities, the following directives are provided.
Every State and other local authority within a State is directed to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups and the President is authorised to issue such directions to any State as he may consider necessary for the securing of such facilities. (Art 350a)
A Special Officer for linguistic minorities is appointed by the President to investigate all matters relating to Ihe safeguards provided by the Constitution for linguistic minorities and to report to the President upon those matters. It shall be the duty of the President to cause all such reports to be laid before each House of Parliament and also to be sent to the Government of the State concerned. (Art 350B).