Constitution: Fundamental Rights

In the previous post we learned about Preamble to the Constitution This post introduces readers to Articles 14, 15, and 16  about the right to equality and nondiscrimination. the right to freedom: what article 19 says and what it means. Limitations on free speech and expression, and how the supreme court defines them.

Contents

  1. Introduction
  2. Right to equality
  3. Right to freedom

Introduction

Part III of the Constitution is about fundamental rights, which run from Article 14 to Article 32 and are broken up into six main groups. We won't go over all of the fundamental rights in detail. Instead, we'll focus on a few of the most important ones in each category, the ones that a social worker needs to know. Some basic rights will be talked about in the Module about a related subject.

Right to equality

Article 14 : Equality before law

‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’

In a democratic political system, equality is one of the most important things. Article 14 says that everyone should be treated the same way by the law and that everyone should be treated the same way by the law. It means that the law shouldn't favour or hurt anyone.

Article 14 says that it applies to "any person," which means that it doesn't just apply to citizens.

Formal equality and proportional equality are the two kinds of equality. Formal equality treats everyone the same, no matter where they stand in society. Proportional equality, on the other hand, recognises that not everyone is in the same situation and that people in similar situations should be treated the same. Article 14 says that people can't be treated differently if their lives are mostly the same. It doesn't say that people can't be treated differently if their lives are very different. India is a Welfare State, which means it follows the idea of proportional equality. Because of this, it has to make laws for the poorest people in society. The term for this is "positive discrimination." This is the basis for what is called "legislative classification" or "reasonable classification," which means that laws make a difference between people.

Legislative or reasonable classification lets the state pass laws that protect and/or give rights to weaker groups, like scheduled caste, scheduled tribe, women, children, and people with disabilities. People who have certain traits are put into groups, and those groups may be treated differently from the rest if it makes sense to do so. The main idea is that the law may need to treat different groups differently depending on their needs. For this kind of different treatment under the law to be legal,
(i) the classification must be based on a clear difference between people in that group and people who are not in that group, and
(ii) the difference must make sense in terms of what the law was trying to accomplish.

For instance, in the 1980s, statistics showed that a large number of Indian women were treated badly by their husbands and/or in-laws when they couldn't pay the dowry. Because of this social evil, which mostly affected married women, it made sense to put them in a separate group and pass laws to protect them and stop this practise. So, in 1983, the Indian Penal Code added Section 498A, which says that a woman's husband or a relative of her husband who treats her badly is guilty of a crime.

Article 14 says that arbitrary and irrational actions are against the law. The vice of arbitrariness is when the government acts in a way that is unreasonable, illogical, or makes no sense. This is a violation of Article 14, which can be questioned in the higher courts. Whether or not a government action is arbitrary depends on the facts and circumstances of that case. Arbitrariness goes against the rule of law because it means that decisions are made outside of what the law says. In the same way, when there is a need for discretion, it must be used based on certain rules or principles. Laws and rules must be followed when making a decision so that behaviour is consistent and predictable, and it shows that everyone is treated the same.

For example, the state has given phone booths to the public in Mumbai. The public agency in charge of this kind of allotment should set up rules to make sure that it isn't done for extraneous reasons, like favouritism or money. The Supreme Court said in Ramana Dayaram Shetty vs. International Airport Authority of India (1979) 3 SCC 489,
It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by national, relevant and nondiscriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was non-irrational, unreasonable or discriminatory.

Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Article 15, paragraphs 1 and 2, makes it illegal to treat people differently because of their religion, race, caste, sex, or where they were born. Clause (1) says that the state can't treat people this way, but clause (2) says that the state can treat people this way however it wants. Clause (2) says that private parties can't treat other private parties differently on any of the above grounds. No one can be stopped from going to or using public places or facilities because of their religion, race, caste, sex, or place of birth. For example, an ad put out by the State government to hire police officers that says women can't apply is against

Article 15 (1). For another example, a privately owned grocery store that sells food to the public cannot turn away a Christian. Article 15 says that people who don't treat people of a certain caste, religion, or sex the same way as the rest of the public should be criticised.

Article 15

 3. Nothing in this article shall prevent the State from making any special provision for women and children.’ 

4. Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Clauses (3) and (4) of Article 15 are exceptions to the rule of nondiscrimination in clause (1). They deal with "positive discrimination" or "affirmative action," where the state is required to take positive steps for the benefit of women, children, scheduled castes, and scheduled tribes.

In response to clause, special laws and rules are made to protect women and children (3). In the case of Government of Andhra Pradesh vs. P.B. Vijaykumar (1995) 4 SCC 520, the Supreme Court said that women should have a special place in society. 
"The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.” 

Article 15 (4) is about social and educational progress, and Scheduled Castes and Scheduled Tribes have been given a special place in it. Clause (4) talks about schools that are run or helped by the government. In 2005, clause (5) was added, which made clause (4) apply to "admission to educational institutions, whether or not they are supported by the state, other than minority educational institutions."

At this point, it would be good to talk about Article 16, "Equality of opportunity in public employment." Like Article 15, Article 16 (1) and (2) talk about non-discrimination "in relation to any employment or office under the State." The important parts are written out.
  1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 
  2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.’
Clause (4) allows for positive discrimination: "(4) Nothing in this article shall stop the State from making any provision for the reservation of appointments or posts for any backward class of citizens which, in the State's opinion, is not adequately represented in the services under the State."

The Constitution talks about reservations in Articles 15 (4) and 16 (4). In Indra Sawhney vs. Union of India [1992 Supp (3) SCC 217], the Supreme Court of India said, 
“The fundamental question is, what is the raison d'etre of reservation and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen.”...the goal of Clause (4) of Article 16 was to share State power." 
State power, which was mostly held by the upper castes, or a small group of communities, was now being spread out to more people. People from backward communities, who had been kept out of power structures until that time, were asked to join. Since this wasn't possible in the usual way, a special rule was made to reach this goal. In short, the goal of Article 16(4) is to "empower the deprived and backward communities" by giving them a say in how the community is run and in the administrative system.

Right to Freedom

Article 19 : Protection of certain rights regarding freedom of speech, etc.

1. ‘All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) [omitted];
(g) to practise any profession, or to carry on any occupation, trade or business.

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.’

Clause 1 of Article 19 says that people have the freedom to act in a variety of ways. Clause 2 says that people's freedom of speech and expression can be limited by law in certain situations. The Constitution (Forty-fourth Amendment) Act of 1978 got rid of Article 19 (1)(f), which said "to acquire, hold, and sell property." In 1951, Article 19(2) was changed, and the change went back in time.

The following are the characteristics of Article 19 : 

  1. These rights are conferred only upon citizens. 
  2. These are common law rights of freedom – they are not imposed by any law. 
  3. A citizen is entitled to every freedom guaranteed under clause (1) - they are not mentioned in order of preference. 
  4. In case of conflict between any of the freedoms under clause (1), it is imperative that they be harmonised so as to co-exist. 
  5. Restrictions may be imposed upon the freedoms under clause (1)(a) - only in the circumstances under clause (2) and only by legislation enacted for such purpose. 
  6. Restrictions so imposed should be ‘reasonable’. 
  7. Validity of a restriction may be tested by courts, and are objective and dynamic – what is reasonable is to be examined through the eyes of the public, and what is reasonable today may cease to be reasonable after a decade.
Freedom of speech and expression is the right of every citizen to say what they want out loud, in writing, or in any other way that can be seen or heard by the public. Under this right is freedom of the press or freedom from censorship. It covers both the right to tell and the right to be told. So, a citizen has the right I to say what he thinks and (ii) to find out what someone else thinks. Article 19 (1) says that people have the right to criticise the government in public and that the public has the right to know about such criticism (a).

The term ‘reasonable restriction’ has been interpreted by the Supreme Court on several occasions. In Bishambhar Dayal Chandra Mohan vs. State of Uttar Pradesh [(1982) 1 SCC 39] : 
“The expression ‘reasonable restriction’ signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.” In State of Madras vs. V.G. Row [AIR 1952 SC 196] : “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” 
In Harakchand vs. Union of India [(1969) 2 SCC 166] : 
“It is necessary to emphasise that the principle which underlies the structure of the rights guaranteed under Article 19 of the Constitution is the principle of balancing of the need for individual liberty with the need for social control in order that the freedoms guaranteed to the individual subserve the larger public interests. It would follow that the reasonableness of the restrictions imposed under the impugned Act have to be judged by the magnitude of the evil which it is the purpose of the restraints to curb or eliminate.”

Now, let's look at how the restrictions in clause (2) of Article 19 affect things. The phrase "sovereignty and integrity of India" has been added so that the state can fight back against calls for secession, which means for a state to leave the Union of India. In Kartar Singh vs. State of Punjab [(1994) 3 SCC 569], the Supreme Court upheld the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act of 1987 on the grounds that the activities "are intended to disrupt even the sovereignty and territorial integrity of India or which may lead to or support any claim for the cession of any part of India or the secession of any part of India from the Union." Is there a difference between "security of the state" and "public order"? In Romesh Thappar vs. State of Madras[AIR 1950 SC 124], the Supreme Court tries to explain what "public order" means. It says, "...'public order' is an expression with a wide range of meanings, and it refers to the state of calm that exists among the members of a political society as a result of the internal rules enforced by the Government that they have set up." "Security of the State" refers to a more serious situation. As the Supreme Court said in State of Bihar vs. Shailabala Devi [AIR 1952 SC 329], "It is clear that speeches or expressions by an individual that incite or encourage violent crimes like murder cannot but be matters that would undermine the security of the State and come within the ambit of a law sanctioned by Article 19 (2) of the Constitution." Freedom of speech and expression could be limited in the name of "security of the State" if people are being stirred up to overthrow the State. Today, it's sad that movies and books are banned and artists and activists are hunted down as "anti-nationals" and "terrorists" just because they show the government in a way that the government doesn't like. In a landmark case on this topic, Kedar Nath Singh vs. State of Bihar [AIR 1962 SC 955], the Supreme Court said, "...comments, no matter how strongly worded, expressing disapproval of actions of the Government, without provoking feelings that make people want to cause public disorder through acts of violence, would not be criminal." In other words, disloyalty to a government set up by law is not the same as making strong comments about the actions or policies of the government or its agencies in order to improve the lives of the people or to get the government to cancel or change those actions or policies in a legal way, that is, without causing feelings of hatred and disloyalty that could lead to public disorder or violence.

Now, let's look at what happens when people break the rules in clause (2) of ArtiFilmmakers have had to go to court because of abuses of clause (2). Anand Patwardhan vs. Director General, Directorate General of Doordarshan [(2006) 8 SCC 433]: "34. The key phrase here is "reasonable restriction," which refers to the rules of society about what is decent. In this case, the documentary film Father, Son, and Holy War shows how social vices are destroying our Constitution from the inside out. Riots between different groups, problems with caste and class, and violence against women are all problems that need the attention of every citizen if they are to be solved. Only well-informed citizens, especially young people, of our country can come up with the right answer. We think that this documentary film shows a true picture of how politically motivated leaders commit crimes and act violently toward women and members of different religious groups for their own political, social, and personal gain. 35. As far as we can tell, this movie doesn't break any Constitutional laws and won't cause any law and order problems, which is what Doordarshan is afraid of. This movie is well within the limits set by our Constitution and doesn't appeal to the voyeuristic interests of the average person. Using today's community standards and looking at the work as a whole, it isn't offensive and won't make the mind of the average Indian citizen worse or more corrupt. le 19. The term "sovereignty and integrity of India" was added so that the state could fight calls for secession, which is when a state leaves the Union of India. The Supreme Court upheld the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act 1987 in Kartar Singh vs. State of Punjab [(1994) 3 SCC 575] on the grounds that the activities "are intended to disrupt even the sovereignty and territorial integrity of India." Is there a difference between "security of the state" and "public order"? In Romesh Thappar vs. State of Madras[AIR 1950 SC 124], the Supreme Court tries to explain what "public order" means. It says, "...'public order' is an expression with a wide range of meanings, and it refers to the state of calm that exists among the members of a political society as a result of the internal rules enforced by the Government that they have set up." "Security of the State" refers to a more serious situation. As the Supreme Court said in State of Bihar vs. Shailabala Devi [AIR 1952 SC 329], "It is clear that speeches or expressions by an individual that incite or encourage violent crimes like murder cannot but be matters that would undermine the security of the State and come within the ambit of a law sanctioned by Article 19 (2) of the Constitution." Freedom of speech and expression could be limited in the name of "security of the State" if people are being stirred up to overthrow the State. Today, it's sad that movies and books are banned and artists and activists are hunted down as "anti-nationals" and "terrorists" just because they show the government in a way that the government doesn't like. In a landmark case on this topic, Kedar Nath Singh vs. State of Bihar [AIR 1962 SC 955], the Supreme Court said, "...comments, no matter how strongly worded, expressing disapproval of actions of the Government, without provoking feelings that make people want to cause public disorder through acts of violence, would not be criminal." In other words, disloyalty to a government set up by law is not the same as making strong comments about the actions or policies of the government or its agencies in order to improve the lives of the people or to get the government to cancel or change those actions or policies in a legal way, that is, without causing feelings of hatred and disloyalty that could lead to public disorder or violence.

"In relation to contempt of court," people may not be able to say what they want. This power of contempt has been questioned by many judges, including the late Justice (Mr.) V.R. Krishna Iyer, who was a retired Supreme Court judge. In an article called "Contempt of power: I," written by Justice Krishna Iyer and published in The Hindu on June 21, 2001, he says, "Free speech is a fundamental right, and so is free access to justice. To stifle these two freedoms because the courts don't like what they call "savage criticism" is to encourage judicial tyranny or a temper tantrum.

Under the Contempt of Courts Act 1971, ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which, inter alia, scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court’.

Ms. Arundhati Roy, an author and political activist, got in trouble with the Supreme Court over an article she wrote called "The Greater Common Good," which was published in Outlook magazine on May 24, 1999, and in parts of her book with the same name. The Supreme Court thought that her writings about how "proceedings related to resettlement and rehabilitation had shaped in this Court" were "a deliberate attempt to undermine the dignity of the court," but the court decided not to start contempt proceedings against Ms. Roy and two others [Narmada Bachao Andolan vs. Union of India: (1999) 8 SCC 308]. One of the three judges on the three-judge bench said, "The Court's shoulders are broad enough to shrug off their comments." About three years later, another bench of the Supreme Court found Ms. Roy guilty of contempt for protesting and shouting in front of the court [Arundhati Roy, In Re: (2002) 3 SCC 343].

Section 13 (b) of the Contempt of Courts Act says that telling the truth can be a valid defence "if it is satisfied that it is in the public interest and the request to use that defence is made in good faith." In Indirect Tax Practitioner's Association vs. R.K. Jain [(2010) 8 SCC 281], the Supreme Court said, "Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with deciding the rights of the parties gives the operators of the system or institution a chance to fix what's wrong and make improvements." This kind of criticism can't be called an attempt to scandalise or lower the authority of the court or other judicial institutions, or an attempt to get in the way of doing justice, unless it's done for the wrong reasons or is seen as a deliberate attempt to bring down the institution or a specific judge for no good reason.

Simply put, everyone has the right to speak and write what they want, and no one should be able to stop them from doing so unless it hurts society or someone else.

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