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DEMOCRATIC
RIGHTS
OVERVIEW
In the previous two chapters we have looked at two major elements of a
democratic government. In Chapter Four we saw how a democratic
government has to be periodically elected by the people in a free and fair
manner. In Chapter Five we learnt that 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.
This is what we take up in this final chapter of the book. We begin by
discussing some real life cases to imagine what it means to live without
rights. This leads to a discussion on what we mean by rights and why do
we need them. As in the previous chapters, the general discussion is
followed by a focus on India. We discuss one by one the Fundamental
Rights in the Indian Constitution. Then we turn to how these rights can
be used by ordinary citizens. Who will protect and enforce them? Finally
we take a look at how the scope of rights has been expanding.
96 DEMOCRATIC POLITICS
6. 1 LIFE WITHOUT RIGHTS
In this book we have mentioned Chapter Three: Our Constitution
rights again and again. If you makers believed that fundamental
remember, we have discussed rights rights were quite central to the
in each of the five preceding Constitution because …
chapters. Can you fill in the blanks Chapter Four: Every adult citizen of
by recalling the rights dimension in India has the right to ... and to be ...
each chapter? Chapter Five: If a law is against the
Chapter One: Chile under Pinochet Constitution, every citizen has the
and Poland under Jaruzelsky were right to approach …
not democratic because … Let us now begin with three
Chapter Two: A comprehensive examples of what it means to live in
definition of democracy includes … the absence of rights.
P r ison in GGuan
uan tanamo BBaa y
uantanamo
About 600 people were secretly
Dear Mr Tony Blair, picked up by the US forces from all
over the world and put in a prison
Firstly, how are you? I sent a in Guantanamo Bay, an area near
letter two years ago, why didn’t Cuba controlled by Amercian Navy.
you reply?!? I was waiting for a Anas’s father, Jamil El-Banna, was
long time but you did not reply. among them. The American
Please can you give me an answer government said that they were
to my question? Why is my dad in enemies of the US and linked to the
prison? Why is he far away in attack on New York on 11
that Guantánamo Bay?! I miss my September 2001. In most cases the
dad so much. I have not seen my governments of their countries were
dad for three years. I know my not asked or even informed about
dad has not done anything, their imprisonment. Like other
because he is a good man. I hear prisoners, El-Banna’s family got to
everybody speak about my dad in know that he was in that prison only
a nice way. Your children spend through the media. Families of
Christmas with you, but me and prisoners, media or even UN
my brothers, and sisters have representatives were not allowed to
spent Eid alone without our dad meet them. The US army arrested
for 3 years. What do you think them, interrogated them and
about that? decided whether to keep them there
I hope you will answer me this or not. There was no trial before any
time. magistrate in the US. Nor could
Thank you, these prisoners approach courts in
their own country.
From: Anas Jamil El-Banna, Amnesty International, an
9 years old. international human rights
7/12/2005 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
DEMOCRATIC RIGHTS 97
were being denied the treatment that E thnic massacr
massacree in KKoso
oso
osovv o
even prisoners of war must get as per You might think that this is possible
international treaties. Many prisoners in an absolute monarchy but not
had tried protesting against these in countries which choose their
conditions by going on a hunger rulers. Just consider this story from
strike. Prisoners were not released Kosovo. This was a province of
even after they were officially declared
Yugoslavia before its split. In this
not guilty. An independent inquiry
province the population was
by the UN supported these findings.
overwhelmingly ethnic Albanian. If you were a Serb,
The UN Secretary General said the
But in the entire country, Serbs would you support
prison in Guantanamo Bay should be
were in majority. A narrow minded what Milosevic did
closed down. The US government
Serb nationalist Milosevic in Kosovo? Do you
refused to accept these pleas.
(pronounced Miloshevich) had won think his project of
the election. His government was establishing Serb
C itizens
ens’’ RRigh
itizens ights in
ights dominance was
S audi AArr abia very hostile to the Kosovo
good for the
The case of Guantanamo Bay looks Albanians. He wanted the Serbs to
Serbs?
like an exception, for it involves the dominate the country. Many Serb
government of one country denying leaders thought that Ethnic
rights to citizens of another country. minorities like Albanians should
Let us therefore look at the case of either leave the country or accept
Saudi Arabia and the position of the the dominance of the Serbs.
citizens with regard to their This is what happened to an
government. Consider these facts: Albanian family in a town in Kosovo
The country is ruled by a in April 1999:
hereditary king and the people 74-year-old Batisha Hoxha was
have no role in electing or sitting in her kitchen with her 77-
changing their rulers. year–old husband Izet, staying warm
The king selects the legislature as by the stove. They had heard
well as the executive. He appoints explosions but did not realise that
the judges and can change any of Serbian troops had already entered
their decisions. the town. The next thing she knew,
Citizens cannot form political par-
five or six soldiers had burst through
ties or any political organisations.
the front door and were demanding
Media cannot report anything that
“Where are your children?”
the monarch does not like.
“… they shot Izet three times in the chest”
There is no freedom of religion.
recalls Batisha. With her husband
Every citizen is required to be
Muslim. Non-Muslim residents dying before her, the soldiers pulled
can follow their religion in private, the wedding ring off her finger and
but not in public. told her to get out. “I was not even
Women are subjected to many
outside the gate when they burnt the
public restrictions. The testimony house” … She was standing on the
of one man is considered equal to street in the rain with no house, no
that of two women. husband, no possessions but the
This is true not just of Saudi clothes she was wearing.
Arabia. There are many countries in This news report was typical of
the world where several of these what happened to thousands of
conditions exist. Albanians in that period. Do
98 DEMOCRATIC POLITICS
remember that this massacre was
being carried out by the army of
their own country, working under A C T I V I T Y
the direction of a leader who came
to power through democratic Write a letter to Anas Jamil in UK, describing
elections. This was one of the worst your reactions after reading his letter to Tony
instances of killings based on ethnic Blair.
prejudices in recent times. Finally Write a letter from Batisha in Kosovo to a
several other countries intervened woman who faced a similar situation in
to stop this massacre. Milosevic lost India.
power and was tried by the Write a memorandum on behalf of women in
International Court of Justice for Saudi Arabia to the Secretary General of the
crimes against humanity. United Nations.
For each of the three cases of life without rights, mention an example from India. These could include the
following:
Newspaper reports on custodial violence.
CHECK Newspaper reports on force-feeding of prisoners who go on hunger strike.
Ethnic massacre in any part of our country.
YOUR Reports regarding unequal treatment of women.
PROGRESS
List the similarities and differences between the earlier case and the Indian example. It is not necessary
that for each of these cases you must find an exact Indian parallel.
DEMOCRATIC RIGHTS 99
want to live happily, without fear enforceable. We can then demand
and without being subjected to their application. When fellow
degraded treatment. For this we citizens or the government do not
expect others to behave in such a respect these rights we call it
way that does not harm us or hurt violation or infringement of our
us. Equally, our actions should not rights. In such circumstances
also harm or hurt others. So a right citizens can approach courts to
is possible when you make a claim protect their rights. So, if we want What are the
that is equally possible for others. to call any claim a right, it has to examples of
You cannot have a right that harms have these three qualities. Rights elected
or hurts others. You cannot have a are reasonable claims of persons governments not
right to play a game in such a way recognised by society and protecting or even
that it breaks the neighbour’s sanctioned by law. attacking the rights
window. The Serbs in Yugoslavia of their own
could not have claimed the whole W h y do w
wee neeneedd rrigh
ights in a
ights citizens? Why do
country for themselves. The claims democraa ccyy ?
democr they do that?
we make should be reasonable. Rights are necessary for the very
They should be such that can be sustenance of a democracy. In a
made available to others in an equal democracy every citizen has to have
measure. Thus, a right comes with the right to vote and the right to
an obligation to respect other rights. be elected to government. For
Just because we claim some thing democratic elections to take place, it
it does not become our right. It has is necessary that citizens should
to be recognised by the society we have the right to express their
live in. Rights acquire meaning only opinion, form political parties and
in society. Every society makes take part in political activities.
certain rules to regulate our Rights also perform a very special
conduct. They tell us what is right role in a democracy. Rights protect
and what is wrong. What is minorities from the oppression of
recognised by the society as rightful majority. They ensure that the
becomes the basis of rights. That is majority cannot do whatever it likes.
why the notion of rights changes Rights are guarantees which can be
from time to time and society to used when things go wrong. Things
society. Two hundred years ago may go wrong when some citizens
anyone who said that women should may wish to take away the rights of
have right to vote would have others. This usually happens when
sounded strange. Today not granting those in majority want to dominate
them vote in Saudi Arabia appears those in minority. The government
strange. should protect the citizens’ rights in
When the socially recognised such a situation. But sometimes
claims are written into law they elected governments may not
acquire real force. Otherwise they protect or may even attack the rights
remain merely as natural or moral of their own citizens. That is why
rights. The prisoners in some rights need to be placed higher
Guantanamo Bay had a moral claim than the government, so that the
not to be tortured or humiliated. But government cannot violate them. In
they could not go to anyone to most democracies the basic rights
enforce this claim. When law of the citizen are written down in the
recognises some claims they become constitution.
law?
years ago a former Prime Minister of
the country faced a court case on
charges of cheating. The court finally
Cultural declared that he was not guilty. But
and as long as the case continued, he had
Educa- to go to the court, give evidence and
tional file papers, just like any other citizen.
Right Right to
Rights This basic position is further
against Freedom
clarified in the Constitution by
Exploitation of Religion
spelling out some implications of the
Right to Equality. The government
shall not discriminate against any
citizen on grounds only of religion,
F U N D A M E N T A L R I G H T S 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 to
the use of wells, tanks, bathing ghats,
Right to Right to roads, playgrounds and places of
Equality Freedom public resorts maintained by
Right to
Constitu- government or dedicated to the use
tional of general public. This might appear
Remedies very obvious, but it was necessary to
Irfan Khan
Assembly in a peaceful manner
Form associations and unions
Move freely throughout the
country
Should the
Reside in any part of the country,
freedom of
expression be and
extended to those Practice any profession, or to carry
Irfan Khan
election. But such meetings have to
be peaceful. They should not lead
to public disorder or breach of peace procedure established by law. It
in society. Those who participate in means that no person can be killed
these activities and meetings should unless the court has ordered a death
not carry weapons with them. sentence. It also means that a
Citizens also can form associations. government or police officer cannot
For example workers in a factory can arrest or detain any citizen unless
form a workers’ union to promote he has proper legal justification.
their interests. Some people in a Even when they do, they have to
town may come together to form an follow some procedures:
association to campaign against A person who is arrested and
corruption or pollution. detained in custody will have to be
As citizens we have the freedom to informed of the reasons for such
travel to any part of the country. arrest and detention.
We are free to reside and settle in any A person who is arrested and
party of the territory of India. Let us detained shall be produced before
say a person who belongs to the state the nearest magistrate within a
of Assam wants to start a business period of 24 hours of arrest.
in Hyderabad. He may not have any Such a person has the right to
connection with that city, he may not consult a lawyer or engage a
have even seen it ever. Yet as a citizen lawyer for his defence.
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 of occupations are not for them.
People from deprived castes cannot
be kept to their traditional
occupations.
The Constitution says that no
Irfan Khan
Are these cases instances of violation of right to freedom? If yes, which constitutional provision does
each of these violate?
The government of India banned Salman Rushdie’s book Satanic Verses on the ground that it was
CHECK disrespectful to Prophet Mohammed and was likely to hurt the feelings of Muslim community.
Every film has to be approved by the Censor Board of the government before it can be shown to
YOUR the public. But there is no such restriction if the same story is published in a book or a magazine.
PROGRESS The government is considering a proposal that there will be industrial zones or sectors of economy
where workers will not be allowed to form unions or go on strike.
City administration has imposed a ban on use of public microphones after 10 p.m. in view of the
approaching secondary school examinations.
R igh
ightt against EExploita
xploitation
xploitation any form. Begar is a practice where
Once the right to liberty and equality the worker is forced to render service
is granted, it follows that every to the ‘master’ free of charge or at a
citizen has a right not to be nominal remuneration. When this
exploited. Yet the Constitution practice takes place on a life-long
makers thought is was necessary to basis, it is called the practice of
write down certain clear provisions bonded labour.
to prevent exploitation of the weaker Finally, the Constitution also
sections of the society. prohibits child labour. No one can
The Constitution mentions three employ a child below the age of
specific evils and declares these fourteen to work in any factory or
illegal. First, the Constitution mine or in any other hazardous
prohibits ‘traffic in human beings’. work, such as railways and ports.
Traffic here means selling and Using this as a basis many laws have
buying of human beings, usually been made to prohibit children from
women, for immoral purposes. working in industries such as beedi
Second, our Constitution also making, firecrackers and matches,
CHECK prohibits forced labour or begar in printing and dyeing.
YOUR On the basis of these news reports write a letter to the editor or a petition to a court highlighting the
PROGRESS violation of right against exploitation:
The latest annual survey
A petition was filed in the Children, from the age of five,
conducted by the National
were employed in the iron ore
Madras High Court. The Sample Survey Organisation
mines in the Hospet, Sandur and
petitioner said a large number found that the number of female
the Ikal areas in Karnataka.
of children aged between child labourers was growing both
Children were forced to carry out
seven and 12 were taken from digging, breaking stones, loading, in rural and urban areas. The
villages in Salem district and dumping, transporting and survey revealed there were 41
sold at auctions at Olur Nagar processing of iron ore with no female child labourers per
in Kerala’s Thrissur district. safety equipment, fixed wages and thousand worker population in
The petitioner requested the working hours. They handled a rural areas as against the
courts to order the government high-level of toxic wastes and previous figure of 34 per
to check these facts. were exposed to mine dust, which thousand. The figure for male
(March 2005) was above the permissible level. child had remained at 31. (April
The school dropout rate in the 2005)
region was very high. (May 2005)
Read these news reports and identify the right that is being debated in each of these cases:
An emergency session of the Shiromani Gurdwara Parbandhak Committee (SGPC) rejected the
CHECK proposal to form a separate body to manage the affairs of Sikh shrines in Haryana. It warned the
YOUR government that the Sikh community would not tolerate any interference in their religious affairs.
(June 2005)
PROGRESS
The Allahabad High Court quashed the Central law, which gave Aligarh Muslim University its minority
status, and held illegal the reservation of seats for Muslims in its postgraduate medical courses.
(January 2006)
The Rajasthan Government has decided to enact an anti-conversion law. Christian leaders have said
that the Bill would aggravate the sense of insecurity and fear in the minds of minorities. (March 2005)
and soul’ of our Constitution.
How can we secure these Fundamental Rights are
rights? guaranteed against the actions of
If rights are like guarantees, they are the Legislatures, the Executive, and
of no use if there is no one to honour any other authorities instituted by
them. The fundamental rights in the the government. There can be no law
Constitution are important because or action that violates the
they are enforceable. We have a right Fundamental Rights. If any act of the
to seek the enforcement of the above Legislature or the Executive takes
mentioned rights. This is called the away or limits any of the
Right to Constitutional Remedies. Fundamental Rights it will be
This itself is a Fundamental Right. invalid. We can challenge such laws
This right makes other rights of the central and state
effective. It is possible that governments, the policies and
sometimes our rights may be actions of the government or the
violated by fellow citizens, private governmental organisations like the
bodies or by the government. When nationalised banks or electricity
Can the President any of our rights are violated we can boards. Courts also enforce the
of India stop you seek remedy through courts. If it is a Fundamental Rights against private
from approaching Fundamental Right we can directly individuals and bodies. The
the Supreme Court approach the Supreme Court or the Supreme Court and High Courts
to secure your High Court of a state. That is why Dr. have the power to issue directions,
fundamental Ambedkar called the Right to orders or writs for the enforcement
rights? Constitutional Remedies, ‘the heart of the Fundamental Rights. They can
4 Name the Fundamental Right under which each of the following rights
falls:
a Freedom to propagate one’s religion
b Right to life
c Abolition of untouchability
d Ban on bonded labour
Put these together and make a newspaper for your school notice board.