Fundamental Rights: Vision v. Reality

This article was written by Navdisha Sehgal  a student of JIMS, School of Law, GGSIPU.

The inclusion of a Chapter of Fundamental Rights in the Constitution of India is in accordance with the trend of modern democratic thought, the idea being to preserve that which is an indispensible condition of a free society.[1] The vision of the freedom fighters while embedding Fundamental Rights in our Constitution was to protect the rights of the unprivileged and the downtrodden. But have we really achieved their vision? No we have not.

We have got various rights in our constitution-

• Right to Equality
• Right to Freedom
• Right against Exploitation
• Right to Freedom of Religion
• Cultural and Educational Right
• Right to Constitutional Remedies

Need for Fundamental Rights

Fundamental Rights are essential to protect the rights of the people. The object behind the inclusion of Fundamental rights in the Constitution is to establish ‘a Government of law and not of man’ a governmental system where the tyranny of majority does not oppress the minority.[2] The object in short is to enforce Rule of Law in India.

Now let us discuss some fundamental rights in details explaining the object of enforcing it and the situation in the current scenario:

Right to Equality

The basic idea behind enforcing Right to Equality in India was to make sure that the women and the unprivileged class is not exploited in India. It implies that no privilege should be given to anyone by the reason of birth, creed or any other reason. It also means establishing Rule of law in India. Rule of law implies that no person is above the law and every person is subjected to the jurisdiction of courts.

Reality in India- Recent Examples

• Women are not allowed to enter Sabrimala and Haji Ali. This is against the rights of the women.
• Parents refused to feed their children with food in school during mid-day meal because the food was made by a widow lady of an inferior caste.

Judicial Interference

• Due to the Maharashtra High Court judgment, Shani Shingnapur has lifted the ban on the entry of women in the temple.
• “Women be permitted to enter the sanctum sanctorum of the Haji Ali Dargah at par with men”, ruled the Bombay High Court.

RIGHT TO FREEDOM

Personal liberty is the most important of all the fundamental rights. There are six freedom guaranteed to the citizens in India-

• Freedom of Speech and Expression
• Freedom of Assembly
• Freedom to form Associations
• Freedom of movement
• Freedom to reside and to settle
• Freedom of profession, occupation, trade or business

Freedom of Speech and press lays the basic foundation of all democratic organizations and for the proper functioning of the Government. But have we really achieved the basic objective of the rights? No I believe. The increasing cases of Sedation in India are really a matter of concern.

Jawaharlal Nehru remarked-

“Now so far I am concerned Section 124-A is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it, the better.”

Reality in India- Cases of Sedition and Arrests

• Two girls were arrested in Maharashtra for posting against the funeral of Bal Thackeray on the social media.
• Kanhaiya Kumar and Hardik Patel were charged with sedition.
• Kashmiri students were arrested for supporting Pakistan in Ind v/s Pak cricket match.

Sedition laws under Section 124-A of IPC is getting used by the political parties and leaders to charge people speaking against them and get them arrested. Speaking against the atrocities and arbitrary actions of politicians and government can land you in jail because of the sedition laws.

Judicial Interference

• In Kedar Nath Singh case[3], the Supreme Court also clarified what is not sedition. Thus it clarified that mere “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition. 

RIGHT TO LIFE AND LIBERTY

Article 21 of Indian Constitution reads as-

“No person shall be deprived of his life or personal liberty except according to procedure established by law”

Life implies a dignified life and in our opinion, dignified life is a result of education. Without education, no dignity of life would be there. The right to live is not merely concerned with having a physical existence but it includes the right to a dignified life. Without achieving the right to education and right to employment in India, no dignity of life will be there, Let us discuss the Right to Education in detail with reference to the flaws in it.

RIGHT TO EDUCATION

Article 21 A of Indian Constitution reads as-

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”

But was this the vision of the constitutional makers. They wrote in Article 45 of Indian Constitution which reads as-

“The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”

The vision of right to education was to provide all people with education and make them capable of earning a living for themselves. Education is a basic human right. Education is the most important element for democracy.

The biggest flaw in the Right to Education under Article 21A of Indian Constitution is that it does not cover the children under the age of 6 years. When the constitutional makers used the words below fourteen years of age, why was there an amendment in the language while making it a right?

Conclusion

On a closing note, I would like to pray that-

“May my country awake to a morning where the vision of the constitutional makers becomes a reality. Let my country have a uniform civil code, May the downtrodden and poor be protected irrespective of their caste and may the vision of social values be achieved in India. Let my country awake!!!!”

[1] Pg. 53, J.N. Pandey

[2] Pg 54, JN pandey

[3] 1962 AIR 955