25 Future of Fundamental Rights

Dr. K Sita Manikyam

AIMS OF THE CHAPTER:

• Learning about the development of fundamental rights in the constitution and out of the constitution.
• Gaining knowledge about enlargement of fundamental rights for future development of human livelihood

1. INTRODUCTION

The Constitution of India was drafted approximately at the same moment as that of the Universal Declaration of Human Rights (1948), the Indian Constitution captures the essenceon human rights in its Preamble, and the sections on Fundamental Rights and the Directive Principles of State Policy. The union of India is based on the ideology that guided India’s fight back against a regal regime that constantly violated the civil, political, social, economic and cultural rights of the people of India. The freedom fight itself was knowledgeable by many activities for social reform, against oppressive social practices like sati, child marriage, untouchability etc. Thus, by the mid-1920s, the Indian National Congress had previously taken on most of the civil and political rights in its schedule. The movements led by Dr. B.R. Ambedkar also have an impact resting on the Indian Constitution.

Despite the reality that most of the human rights are clearly expressed in the Constitution of India, the independent Indian State approved ahead many colonial tendencies and power structures, as well as those implanted in the privileged Indian Civil Service. Although the Indian State under Jawaharlal Nehru took many positive steps and followed a welfare state representation the police and bureaucracy remained mostly colonial in their approach and wanted to put forth the power and authority over citizens.

In the first 15 years of the Indian republic, such innate contradictions inside the Indian polity were polished over by the euphoria of ‘nation-building’, an agenda usually certified by political parties, the middle class and privileged civil society. When the Indian State began to restrain such terminology of political revolt and mini-rebellions, the violation of human rights by the State began to grasp awareness.

After a phase of 30 years, the expression and affirmation of human rights within civil society was full-fledged into a much more affluent, more varied and comparatively more influential conversation at manifold levels. A brief chronological sketch of the dissimilar trajectories of human rights dialogue will assist us to situate human rights in the historical perspective. There are four precise trajectories of human rights discourse in the Indian context — Civil and Political Rights, Rights of the Marginalized, Economic, Social and Cultural Rights, and the Right to Transparent and Accountable Governance, even though each of these trajectories is interrelated, they were promoted by diverse sets of actors at unlike point in time. There has always been stress and lack of communal admiration between those who promoted universal liberties and the left-oriented groups who work towards the structural makeover of socioeconomic circumstances and accordingly of the State.

2. PRE-CONSTITUTIONAL HUMAN RIGHTS APPROACH

The constitutional guarantee of the human rights of our nation was one of the determined demands of our leaders all through the freedom struggle. The Constitution of India Bill, popularly known as the Swaraj Bill, which was inspired by Lokmanya Tilak. The order was repeated in the Mrs. Anne Besants’ Commonwealth of India Bill, finalized by the National Convention of Political parties in 1925, by the Motilal Nehru Committee in 1928, at the Karachi session of the Indian National Congress in 1932 and by the Tej Bahadur Sapru Committee, 1944- 45.

Greatest legal luminaries of our country participated in the debates on the foundation of the human rights Jurisprudence in 1950,and Part III of the Constitution containing the Chapter on Fundamental Rights was evolved. On the parallel of the Irish Constitution, other rights came to be incorporated in Part IV and were called the Directive Principles of State Action. The Constitutions of Papua New Guinea and Nigeria to hold like provisions.

3. DEVELOPMENT OF FUNDAMENTAL RIGHTS IN LAST FIFTY YEARS IN INDIA

The drafting of the chapters on Fundamental Rights and Directive Principles by the Constituent Assembly was finished in the year 1949. By that time, the Constituent Assembly, perhaps had prior to it simply one significant deed geared up by the United Nations, particularly, the ‘Universal Declaration of Human Rights’. That Declaration was adopted by the United Nations on December 10, 1948. It enclosed a list of nearly all the basic human rights, currently described as civil and political rights on the one hand and the social, economic and cultural rights on the other. That was the circumstances when our Constitution came into authority on January 26, 1950. But since 1950, there has been strange growth on human rights issues from crook to crook of the world. Human Rights came to be divided, however unfortunately, into two groups and were brought under two separate Covenants, unambiguously, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Government of India accedes to the two Covenants with definite reservations.

It might also be consequential, that all through the last fifty years; the Constitution has been amended on a series of aspects. In particular, the chapter on Fundamental Rights in Part III and the chapter on Directive Principles in Part IV have suffered frequent amendments from time to time. The Chapter on Fundamental Rights in Part III was amended, in the last fifty years, on twelve occasions. But quiet, as will be noticed in Chapter III of this statement, rather a few other rights reside behind to be built-in Part III of the Constitution.

It is essential to note that several of these amendments and in particular the Constitution 25th Amendment, 1971 and the 42nd Amendment 1976 to the Chapter on Fundamental Rights in Part III, gradually brought in relation to an association stuck between the realistic restrictions that might be forced by law on the Fundamental Rights, in the sense that if the restrictions were meant for the purpose of implementation of the Directive Principles of State Policy, they would be valid. Individual fundamental rights thus gave way, and rightly so, to serve the larger interests of the community which were spelled out in greater detail in the Chapter on Directive Principles. It was stated that if the restraint on the fundamental right was for the purposes of giving effect to certain social and economic policies enshrined in the chapter on Directive Principles, then the restrictions imposed by law on those fundamental rights could not be struck down by the Courts as unreasonable. Some of these amendments to the Constitution were upheld while some others were not accepted by the Supreme Court.

The Supreme Court gave the lead and moved forward to enlarge Fundamental Rights by a process activist interpretation, while constitutional legislation lagged behind. The Court read into the word ‘life’ in Art. 21 of the Constitution of India several other human rights – the right to live with human dignity, the right to clean and healthy environment, right to education up to 14 years of age, right to emerging medical aid, right to health, right to shelter, right to livelihood, right to fair and speedy trial and right to free legal aid, right to compensation, rights of children, rights against torture, the rights of prisoners and so on. The important point here is that some of these rights which are contained in the Chapter on Directive Principles in Part IV has, on account of the widening of Art. 21. Crossed over imperceptibly from Part IV into Part III Similarly, the Supreme Court has spelt out the right to freedom of the press and the fundamental right to freedom of information from the fundamental right to freedom of speech and expression in Art. 19 (1) (a).

4. FUTURE FUNDAMENTAL RIGHTS TO ENLARGE UNDER INDIAN CONSTITUTION

In Chapter III, we have anticipated enclosure of diverse Economic, Social and Cultural Rights – in Part III of the Constitution. But, there are a few other important human rights, evenly fundamental such as the right to work, health, food, clothing, housing, education and culture which must be taken concern of. These rights are vital to the weaker sections of our society and cannot be left peripheral our consideration. They are enclosed in the ICESCR.

While, these rights cannot be included in Part III, it is felt that a method be introduced which will formulate sufficient funds accessible for awareness of these rights. The expenditure of providing shelter, education, health care and social services to the worlds. It is a huge sum, but approximately amounts to the same outline that the world spends on arms in just two weeks. The Right to Work, Health, Food, Clothing and Housing cannot obviously be included in Part III for the clear cause that their enforcement depends to a large extent on the resources of the State and its state of development. But, the ICESCR to which India is a party requires “step by step” or progressive apprehension of these rights and that the State ought to set apart the greatest of its available assets.

These Economic, Social and Cultural Rights are spelled out in great facet in the Covenant. Art. 6 of ICESCR refers right to work, Art. 12 to right to health, Art. 11 to right to food, clothing and housing. In as much as Art. 35 of our Constitution expressly provides that the Directive Principles referred to the Part IV are not enforceable through the courts, it is all the more necessary to provide a separate machinery for realization of these rights.

4.1. Right to Work

Art. 6 of the ICESCR states that the State must recognize the right to work, which includes the right of every person to be provided an opportunity to gain his living by work which he liberally prefer or accepts, and that the State takes appropriate steps to preserve this right – which shall include the technical and vocational supervision and training programmes, policies and techniques to attain steady economic, social and cultural development and fill productive employment under conditions safeguarding fundamental political and economic autonomy to the entity.

Therefore, the right to work does not mean that everybody is to be employed by the State. It merely means that opportunities must be formed by the State to its citizens to achieve a living. In other words, the State has to expand employment opportunities both in the communal and confidential sector.

4.2. Right to Health

Art. 12 of the ICESCR requires the State to identify the right of everyone to the satisfaction of the highest achievable standard of physical and mental health and that the State shall take steps for the decline of the still-birth rates and of infanticide; and work for the healthy improvement of the child, the improvement of all aspects of environmental and individual cleanliness; control and suppression of work-related and further diseases, and the creation of circumstances which will guarantee to all, medical service and medical attention, in the occurrence of sickness.

The right to health is not a right to be healthy. It means a right to certain freedoms and entitlements. The freedoms comprise the right to control ones’ health and body, including sexual and reproductive choice and the right to be free from intrusion, such as by non-consensual medical treatment and conducting tests. The entitlements include a right to a system of health protection with equality to opportunity to benefit from the highest achievable level of wellbeing

–a right to the enjoyment and availability of facilities, good services and environment such as physical accessibility, economic ease and information-accessibility. It should be acceptable and must also be qualitative and includes the right to healthy working surroundings and precautionary medicine.

As of today, free medical treatment in government hospitals is completely scarce. Nor is it accessible always in close neighborhood.It is a fall of life that the inferior and weaker sections of humanity are not capable to afford the unexpected of expense implicated in the medical care provided by private hospitals. Is, therefore, burning necessitate to see that gradually, the State allocates enough funds in this behalf.

4.3. Right to Food and Freedom from Hunger, Clothing and Housing and Shelter

Art. 11 of the ICESCR deals with these rights. It deals with commencement of programs by the State for the recognition of these rights. First, the State should identify the right of everyone to a satisfactory standard of living for himself and his family, together with adequate food, clothing and housing and to the constant development of living conditions; the State shall also have to be familiar with the right of everyone to be free from starvation. It shall subsequently have to commence programmes to get better methods of making, storing up and supply of food by making full exercise of scientific and systematic knowledge, by disseminating acquaintance of the principles of diet and by increasing or reforming agrarian system in such a way as to attain the most well-organized growth and consumption of natural resources; and to take into consideration, the problem of both food-importing and food-exporting countries and to make sure an impartial distribution of world food supply in relation to need.

Today, it is well-known that although the warehouses of the Food Corporation of India are filled with surplus food grains, there are hunger deaths across the country. Further, relatively a good percentage of food grains are missing due to poor conservation and all through circulation. This must be avoided by introducing an appropriate system. Better and further well- organized systems of production must be introduced. The right to food focuses on healthier means of making, maintenance and supply. The awareness of the right to food, clothing and housing does require the State to set up long series and short series of procedure for appropriate distribution of essential funds.

4.4. Right to Education below 14 years and above 14 years

Article 13 of the ICESCR deals with the right to education. So far as primary education up to 14 years is concerned, as stated in Chapter III (c) (i) it should be free and compulsory. We have also in that correlation, referred to the planned constitution 93 Amendment Bill, which propose free and compulsory education from the 6th year up for the 14th year. It is also suggested that education after 14 years should be made a Fundamental Rights but focus to the confines of the States’ economic capacity and growth.

In as greatly as the State must offer sufficient funds both for the principle of education below 14 years and beyond 14 years, we are in concert with ‘education’ also as one of the subjects in this Chapter for which a method must be set up which can suggest the essential financial assets.

4.5. Right to Culture

The International Covenant on Economic, Social and Cultural Rights recognizes the right to the preservation of culture and its development. Art. 15 of the Covenant reads as follows:

Art. 15:

1. The States Parties to the present Covenant recognize the right of everyone:

• To take part in cultural life;
• To enjoy the benefits of scientific progress and its applications;
• To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to accomplish the complete consciousness of this right shall comprise those needed for the maintenance, the expansion and the distribution of science and culture.

• The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
• The States Parities to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

The UNESCO Declaration of the Principles of International Cultural Cooperation 1966 speaks of the right and the duty of all citizens to expand its culture. Other UNESCO instruments comprise The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, the 1964 Recommendation and Convention on the Means and Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, the Convention concerning the Protection of World Cultural and Natural Heritage 1972, and the Recommendation concerning the International Exchange of Cultural Property 1976. The UNESCO’s role to the safeguard of monuments and works of fine art has been predominantly striking. Its 1980 proposal with reference to the status of the Artist seeks to look after the cultural and property rights of artists. Art. 51 A was introduced by the Constitution (42nd Amendment) Act, 1976 and clause (f) of the said Article states that it is a duty of every citizen of India ‘to value and preserve the rich heritage of our composite culture’. Art. 49 of the Directive Principles necessitate the State to guard monuments, places and objects of nationalized value. For protecting culture in all its statistics and in increasing, the State must set apart essential assets.

As to the association of this organization, it should be a high-profile body consisting of Planning and Finance Experts and Experts linked with each of these subjects, specifically work, health, food, clothing, housing and shelter, education and culture. The of the Constitution and its functions and the enforcement of its recommendations ought to be provided by a separate law to be prepared by Parliament. The Union Government, the State Governments, the Planning Commission and the Finance Commission and the State Planning and Finance departments and other Planning Boards necessity esteem and offer due burden to the recommendations of this organization and create suitable allocations year after year for the progressive apprehension of these rights.

5. CONCLUSION

The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. Some commentators consider the Indian Constitution to be an extremely lengthy document that goes into excessive details about the structure and working of the government machinery. Most of these rights are enforceable against the State by way of their language, while some others are directed both against the State and private actors. The most important feature however is that the fundamental rights gave the higher judiciary a clear set of criteria to regulate relations between citizens and the government as well as between citizens themselves. Furthermore, Indian Courts have interpreted these rights not only in a negative dimension, but also in a positive dimension.

The rights to education, food, shelter, work, shelter, clothes are emerging as fundamental to every individual. When the state gives importance to these rights than constitutional goals are rightly fulfill the individual needs. They help in preserving human dignity and allow every citizen to live with self-respect. They accentuate on the fundamental accord of India by guaranteeing the same rights to everyone irrespective of their religion, caste, creed, place of birth, etc. and keep the democracy survive.

Reference

• Basu,DurgaDas,Introductiontotheconstitutionof India.
• Jain,M.P.,IndianConstitutionalLaw.
• Pylee,M.V.,India’sconstitution.
• www.legalserviceindia.com
• www.civilserviceindia.com
• www.encyclopedia.com