UNIT 4 CONSTITUTIONAL PROVISIONS ON

HUMAN RIGHTS AND DUTIES

Structure
4.1 Introduction
Aims and Objectives
4.2 Human Rights in India
4.2.1 The Constituent Assembly

4.3 Fundamental Rights

4.3.1 Right to Equality
4.3.2 Right to Freedom
4.3.3 Right Against Exploitation
4.3.4 Right to Freedom of Religion
4.3.5 Cultural and Educational Rights
4.3.6 Right to Constitutional Remedies

4.4 Directive Principles of State Policy

4.4.1 Socio-Economic Rights
4.4.2 Gandhian Principles
4.4.3 Directives for General Welfare and Governance

4.5 Fundamental Duties

4.6 Summary
4.7 Terminal Questions
Suggested Readings

4.1 INTRODUCTION
You have already studied about the meaning and importance of Human Rights and the
struggle for achieving these rights in India during the Colonial period. As the concern for
rights and civil liberties had become a part of the national movement, the framers of the
Constitution were committed to provide these in the Constitution that guaranteed Liberty,
Equality and Justice. They provided in the Constitution two types of rights- one Justifiable
and other non-justifiable: the first in Chapter III on Fundamental Rights and the second
in Chapter IV as Directive Principles of State Policy. These are more or less similar to
Civil and Political Rights and Economic, Social and Cultural Rights provided in the
Universal Declaration of Human Rights which you have already read. In this Unit, you will
study in detail the types, nature and importance of these rights. You will also read about
the types and nature of Human Rights as provided by the Indian Constitution and learn
about the methods for enforcement of these rights.
Aims and Objectives
After going through this Unit, you will be able to understand
 the rights provided to citizens and other persons in India by the Constitution of India;
50 Human Rights: Indian Perspective

 the nature of rights and limitations attached to these rights;

 the importance of Directive Principles of States Policy;
 the Fundamental duties contained in the Constitution; and
 the mechanisms provided by the Constitution for effective implementation of rights.

4.2 HUMAN RIGHTS IN INDIA

India’s struggle for freedom basically was a struggle for self-determination, for freedom of
equality, liberty and justice. These are the core values of the vision of Human Rights. In
fact even earlier social reformers have emphasised the values of civil liberties. Western
liberal education, growing repressive character of the colonial power and consciousness in
various social groups further added to the evolution of demand for rights. The Indian
National Congress which spearheaded the National movement throughout emphasised the
idea of rights. The struggle against the Rowlatt Act in 1919 was a landmark in the history
of civil liberties movement in India.
In 1930 at the time of civil disobedience movement there also emerged the idea of an
organised civil rights movement. This took the shape of “Indian Civil Liberties Union”
(ICLU) formed in August 1936. Rabindranath Tagore and Sarojni Naidu became the
Honorary President and president respectively on the request of Jawaharlal Nehru, who
had mooted the idea of ‘ICLU’. During freedom struggle, the defence of civil liberties
was not narrowly conceived in terms of one political group or party. It was extended to
the defence of all groups without concern about ideological or strategic differences.

4.2.1 The Constituent Assembly

The idea that every individual possessed certain inherent rights was one of the prominent
moving spirits of freedom struggle and therefore, the inclusion of rights was considered as
an essential part of the Constitution to be framed by the Constituent Assembly of India.
This was made amply clear in the objectives resolution moved by Jawaharlal Nehru on
13 December 1946. The resolution promised to all citizens of India:
Justice: Social, economic and political,:
Equality: of status, of opportunity and before the law; and
Freedom: of thought, expression, belief, faith, worship, vocation, association and action,
subject to law and public morality.
The objectives Contained in the above resolution were later adopted as part of the
Preamble of the Constitution.
You will appreciate that in a society full of divisions of caste, religions, tribes, languages
etc, as also having a large population of poor, such promises were revolutionary. At the
same time mere political legal equality was not sufficient for the deprived sections of
society. Therefore, apart from granting freedoms and equality, provisions for providing
protective safeguards were also necessary. The Constituent Assembly therefore made
provisions for both negative and positive rights as also special provisions for vulnerable
sections of the society within rights.
Negative rights refer to freedoms and equality that the State must not encroach upon.
Constitutional Provisions on Human Rights and Duties 51

That is State is prohibited from exercising power. Positive rights require State to take
active steps towards their realisation. The Constituent Assembly divided the rights into two
parts. In chapter III of the Constitution- under Fundamental rights- were guaranteed
primarily negative rights and in chapter IV under Directive Principles of State Policy were
provided positive rights. The Preamble, Fundamental Rights and Directive Principles
combined the values of freedom, equality and economic and social justice.

4.3 FUNDAMENTAL RIGHTS

The fundamental rights have been provided in part III of the Constitution. These are
primarily in the nature of civil and political rights. There are two kinds of rights, some
available to all persons living in India and some available only to citizens of India. These
rights are justiciable, which means in case of violation of these rights, the citizens can go
to courts for enforcement of these rights. The rights as such are Constitutional guarantees.
These can be infringed only to the extent provided by the Constitution itself or under
conditions of emergency. Originally, the Fundamental rights were provided under seven
categories. In 1978, through 44th amendment of the Constitution, one right that is right
to property, was deleted from the chapter on rights. As such there are now six categories
of Fundamental Rights. These are discussed as below:

4.3.1 Right to Equality

Through Articles 14 to 18, the Constitution provides equality before law, of opportunity,
dignity and status.
Article 14 provides that the state shall not deny to any person equality before law or the
equal protection of the law within the territory of India. Article 15 prohibits the state to
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth
or any of them. Prohibition of discrimination is placed also on society as no citizen on
any of the above mentioned grounds can be denied access to shops, restaurants, hotels,
places of public entertainment, and use of wells, tanks, bathing ghats, roads and places
of use of the general public.
The State, however, can make special provisions for women and children. For example
men can be denied access to places of bath for women, or adults from entry to parks
for children. Article 15 also allows state to make special provisions for the advancement
of backward classes of citizens and for Scheduled castes and tribes.
Article 16 provides equality of opportunity for all citizens in respect of public employment.
They cannot be deprived of this on grounds only of religion, race, caste, sex, descent,
place of birth, residence etc. The State can, however, make special provisions for
reservations of jobs for the Scheduled Castes and Tribes as also promotions in jobs. It
means denial of opportunity to others in jobs reserved for Scheduled Castes and Tribes.
This is known as affirmative action for the welfare of deprived sections.
Article 17 abolishes practice of untouchability in any form. It declares practice of
untouchability as a crime punishable in accordance with law. Thus equality of dignity is
assured. To provide equality of status Article 18 provides that the state shall not confer
any title other than military or academic. No citizen of India shall accept any title from
any foreign state. No person other than a citizen, while holding an office of profit, under
the state shall, without the consent of the president, accept title from a foreign state.
52 Human Rights: Indian Perspective

It thus becomes clear that in India all citizens are equal in all respects. State can
discriminate only for welfare of Scheduled castes, Scheduled Tribes and Backward
Classes of citizens to provide them justice that was denied to them for centuries.

4.3.2 Right to Freedom

Articles 19 to 22 of the Constitution grant various types of freedoms to persons.
Basic Freedoms
Article 19 guarantees six basic freedoms. These are (i) freedom of speech and expression,
(ii) Freedom to assemble peacefully without arms, (iii) Freedom to form associations and
unions, (iv) Freedom of movement, (v) Freedom to reside and settle in any part of India,
and (vi) Freedom to practice any profession or carry on any occupation, trade or
business.
These freedoms, however, are not absolute; clauses 2 to 6 of the Article 19 provide for
conditions under which the state can put reasonable restrictions on these freedoms under
certain conditions. These are: security of the state, public order, foreign relations,
defamation, contempt of court, sovereignty and integrity of India, public morality or
incitement to commit an offence.
Protection in respect of Conviction of offences
Article 20 gives to citizens, protection against conviction for offences except for the
violation of the law in force, against punishment for the same offence more than once and
against forcing a person to be a witness against one self.
Right to Life and Personal Liberty
Article 21 guarantees all persons right to life. According to this, no person shall be
deprived of his life or personal liberty except according to procedure established by law.
Right to life has been expended by the Supreme Court declaring that right to life means
a dignified life. The Government of India has also agreed with it and through an
amendment of the Constitution, it added Article 21 A guaranteeing the right to education
to all children between the age of six and fourteen years. Issues of pollution have also
been taken up as affecting the right to life.
Protection in cases of Arrest and Detention
Article 22 provides for right to be informed of the grounds of arrest, right to consult and
be defended by a lawyer, right to be presented before a magistrate within 24 hours etc.
These rights are, however, withheld from enemy, aliens and persons who are arrested or
detained under any law providing for preventive detention.

4.3.3 Right against Exploitation

Articles 23 and 24 provide Right against Exploitation. This right assures guarantee against
‘traffic in human beings’, forced labour, begging etc. Article 24 protects children below
the age of 14 from employment in factories, mines, and other hazardous jobs.

4.3.4 Right to Freedom of Religion

Articles 25 and 26 guarantee freedom of Conscience and free profession; practice and
propagation of religion, establishment and maintenance of institutions for religious and
charitable purposes. These freedoms, however, are subject to public order, morality and
Constitutional Provisions on Human Rights and Duties 53

health. It means all individuals and religious groups are free to practice their faith without
endangering public order and health.
Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of
which are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denominations. Article 28 forbids the
imparting of religious instructions in educational institutions funded by state. In institutions
aided by state, students cannot be forced to attend religious instructions.
The above provisions of Article 25 to 28 make it clear that while all individuals are free
to adopt and practice any religion, and all religions are free to flourish according to their
established traditions, the state will not promote or favour any particular religion nor will
it discriminate against any. It is these provisions that make India a secular country.

4.3.5 Cultural and Educational Rights

Articles 29 and 30 protect the interest of minorities in terms of their traditions and
languages. Any section of the citizens, residing in the territory of India having a distinct
language, script or culture, has the right to conserve the same. No citizen can be denied
admission to a State owned or State-aided educational institution on grounds of religion,
race, caste or language. Article 30 gives minorities the right to establish and administer
educational institutions. This Article also provides that the State cannot discriminate against
any educational institution on the ground that it is under the management of a minority.

4.3.6 Right to Constitutional Remedies

As you have read in the beginning, the Fundamental Rights are justiciable. For this Article
32 gives right to persons to appeal to courts- both Supreme Court and High Court- in
cases of violation of any right. The Courts have been given powers to enforce Rights by
appropriate remedies. They can issue writs of habeas corpus (asking the detaining
authority to bring a detained person to the court for trial); mandamus (ordering a
government to do its duty); prohibition (stopping an authority from violating someone’s
right); quo warrant (asking an official body of the authority under which power has been
exercised), and certiorari (taking over of a case from a lower court by a higher court).
From the above discussion, you might have understood that Fundamental Rights basically
protect individuals against violation of their freedom, liberty and equality by state. These
are called negative because the state has been asked not to violate these rights. The
Articles 15 and 16 empower the state to initiate positive action also for the welfare of
Scheduled Castes, Scheduled Tribes and Backward Classes. In general, Chapter III
primarily provides Civil and Political Rights. Chapter IV of the Constitution provides the
rights that are positive in nature as State has to provide these through its policies and
actions.

4.4 DIRECTIVE PRINCIPLES OF STATE POLICY

As already mentioned, the framers of the Constitution were eager to provide both Civil
and Political Rights and Economic, Social and Cultural Rights. The second category of
rights is provided in chapter IV of the Constitution through Articles 36 to 51. The
Directive Principles are special feature of the Indian Constitution. They are essentially
aimed at social welfare, especially of the weaker sections of the society. They are
different from Fundamental Rights in the sense that they are not enforceable by any court.
In fact these are not granted to citizens as rights but are directives to the state, as Article
54 Human Rights: Indian Perspective

37 says ‘fundamental in the governance’ and the state is expected to apply these
principles in making laws. Inspite of non-enforceability by courts, the state is responsible
and accountable for implementation of these principles. Even courts have taken notice of
these and at times asked the state for enforcement of these principles as rights.
In terms of rights or policy frameworks, the Directive Principles can be divided into three
categories:
(i) Socio-Economic Rights
(ii) The Gandhian principles
(iii) Directives for General Welfare and Governance

4.4.1 Socio-Economic Rights

These principles for Socio-Economic rights and welfare have been provided in Articles
38, 39, 39A, 41 and 42.
Article 38 provides that “The state shall strive to promote the welfare of the people by
protecting, as effectively as it may, a social order in which justice, social-economic and
political shall inform all the institutions of the national life. It also directs the state to
eliminate inequalities in income, status, and opportunity not only among individuals but also
among groups of people”.
Article 39 provides that the state shall, in particular, direct its policies for securing the
citizens both men and women:
i) Equal right to an adequate means of livelihood;
ii) Equal pay for equal work;
iii) Fair distribution and control of resources so as to serve the common good;
iv) To check that operation of the economic system is in a way that it does not result
in the concentration of wealth and means of production to the common detriment.
v) Prevention of health and strength of workers, men and women, and the tender age
of children against abuse; and
vi) Opportunities and facilities for children and youth to develop in healthy manner and
not to be exploited.
Article 39A provides that the State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free
legal aid, so that justice is not denied to any citizen by reason of economic or other
disabilities.
Article 41 states that within the limits of its resources the state will make provision for
the right to work, to education, and to public assistance to the unemployed, sick, old and
disabled; secure just and humane conditions of work and maternity relief; and decent
living, wage; raise level of education, standard of living and public health, early childhood
care and education of children below the age of six.
Article 43 directs the State to ensure to all workers agricultural, industrial or otherwise,
Right to work, right to a living wage and right to such conditions of work as would
Constitutional Provisions on Human Rights and Duties 55

ensure a decent standard of life and full enjoyment of social and cultural opportunities. A
new Article 43A introduced in 1976, directs the state to ensure the participation of
workers in the management of industry and other undertakings.

4.4.2 The Gandhian Principles

Mahatma Gandhi, as a thinker, had a perspective of state, nation and rule. He had vision
about the government of state from common man, particularly, villagers’ needs. In the
Constitutional Assembly, there were members who considered these views quite relevant
for society in India. Some of these were included in the state for implementation. These
are as follows:
Article 40 directs the state to organise village Panchayats and to vest them with such
powers and authority as may be necessary to enable them to function as units of self-
government. This means establishment of Gandhi’s idea of Panchayati Raj. You may be
aware that through 73rd Amendment of the Constitution, the Panchayati Raj system has
been implemented as a Constitutional provision.
Article 46 provides for the state to promote the educational and economic interests of the
Scheduled Castes, Tribes and other weaker sections of the society. It also directs the
State to protect these sections from social injustice and from all forms of exploitation.
Article 47 states that the state shall raise the level of nutrition and standard of living of
people. It also directs the state to bring about prohibition of intoxicating drinks and drugs,
which are injurious to health.
Article 48 is concerned with the preservation and improvement of cattle and prohibition
of cow-slaughter. State is also asked to endeavour to organise agriculture and animal
husbandry on modern and scientific lines. A new Article 48A introduced in 1976 directs
the state to protect and improve the environment and to safeguard the forests and wildlife
of the country.

4.4.3 Directives for General Welfare and Governance

The Directive Principles also direct the State to adopt and implement policies for basic
education, uniform civil code, independence of judiciary, protection of heritage and
promotion of international peace.
Article 44 prescribes for a uniform civil code and directs the State to endeavour to
secure to all citizens a uniform code throughout the territory of India.
Article 45 provides that the state shall endeavour to provide, within a period of ten years
from the commencement of the Constitution, free and compulsory education for all
children until they complete the age of fourteen years. You have already read that with
the introduction of Article 21A in Chapter III on Fundamental Rights, this provision of
Directive Principles now has been made a Fundamental Right.
Article 49 directs the state to protect, preserve and maintain monuments, places or
objects of artistic or historic interest or of national importance. The State is to ensure that
these monuments and objects are not spoiled, disfigured, destroyed, removed or exported.
Article 50 directs the state to take steps to separate judiciary from the executive in public
service or the state. This has been a colonial legacy for District Magistrates to exercise
both executive and judicial powers. This concentration of powers goes against the theory
56 Human Rights: Indian Perspective

of checks. Therefore the framers of the Constitution desired the separation of the two.
This has been now achieved to an extent.
Article 51 directs the state to formulate its foreign policy keeping in view the principle of
world peace and harmonious coexistences of nations. The Article directs the State to
shape its foreign policy as to attain the following objectives:
I) Promote international peace and security;
II) Maintain just and honourable relations between nations;
III) Respect for international law and treaty obligations in the dealings of organised
people with one another; and
IV) Encourage settlement of international disputes by arbitration.
In the above description of Directive Principles of State Policy, you might have observed
that makers of the Constitution wanted to direct the future governments to work for
improvement of conditions of masses, provide equality and social justice by formulating
and implementing positive actions. You might have also seen that a number of principles
are quite similar to Economic, Social and Cultural Rights contained in the Universal
Declaration of Human Rights. The Assembly members were conscious of the limitations
of the resources available with the government in the early years of independence.
Therefore, they did not make Directive Principles as justiceable rights. However, these
provisions serve as to inform citizens that they are entitled to these rights. They can,
therefore, assess the performance of the governments on the basis of sincerity towards
these rights. In recent years even Judiciary has taken a view that in some ways the
Directive Principles are as fundamental as Fundamental Rights and therefore need serious
attention of the government. The governments have also taken significant measures for
effective implementation of these principles. It can be said that Fundamental Rights and
Directive Principles are complimentary and supplementary to each other.

4.5 FUNDAMENTAL DUTIES

You have read that rights and duties are closely related. These in fact are considered two
sides of the same coin. Gandhi, in particular, on the basis of his belief that every human
being was dependent on other human beings, argued that rights flow from duty towards
others. He went to the extent of observing that the right to perform one’s duties is the
only right that is worth living for and dying for it. It covers all legitimate rights. The
framers of the Constitution perhaps thought that the duties of citizens were implied in their
being citizens and to some extent, in the restrictions contained on rights in the chapter on
Fundamental Rights. In 1975 a committee, under the chairmanship of Swaran Singh to
suggest comprehensive changes in the Constitution for better governance of State and
welfare of the masses, recommended the inclusion of Fundamental Duties in the Constitution.
On the basis of these recommendations through 42nd Amendment, Section 51A of the
Constitution in 1976, a new Section Part IV A on Fundamental Duties, has been added
in the Constitution.
This Article prescribes the following duties for every citizen of India:
(a) To abide by the Constitution and respect the National Flag and National Anthem;
(b) To cherish and follow the noble ideas, which inspired our national freedom struggle;
Constitutional Provisions on Human Rights and Duties 57

(c) To protect sovereignty, unity and integrity of India;

(d) To defend the country;
(e) To promote the spirit of common brotherhood amongst the people of India transcending
religious, linguistic, regional, or sectional diversities and laws to renounce practices
derogatory to women;
(f) To preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment;
(h) To develop the scientific temper and spirit of enquiry;
(i) To safeguard public property;
(j) To strive towards excellence in all spheres of individual and collective activity; and
(k) As a parent or guardian to provide opportunities for education to child or ward
between the age of six and fourteen years. (This duty was included in Article 51A
in 2002 through 86th Amendment of the Constitution as a provision for right to
education).
The above-mentioned duties, just like Directive Principles of State Policy, are not
justiceable, that is, not enforceable by courts. The Fundamental Duties are in the nature
of instructions to citizens. As in the case of Directive Principles, these duties, being part
of the Constitution, cannot be ignored. Therefore, while interpreting laws or delivering
judgements on concerned issues, the judiciary is expected to keep these duties in view.
As far as citizens are concerned, the inclusion of duties in the Constitution reaffirms the
principle that a citizen is expected to fulfill certain obligations while enjoying rights. You
might have read that Article 29(1) of the Universal Declaration of Human Rights also
provides that “Every one has duties to the community in which alone the free and full
development of his personality is possible.” As such it is important to keep in mind that
the duties and rights go together.

4.6 SUMMARY
In this unit you have read that Indians facing repression under colonial rule were much
concerned about human rights as a part of freedom struggle. Therefore the makers of the
Constitution committed themselves to provide rights for citizens as guarantees for freedom,
equality and liberty. In the Constitution of India two types of rights are provided in
chapters III and IV. Chapter III contains Fundamental Rights and chapter IV Directive
Principles of State Policy. While Fundamental Rights are justiceable and therefore can be
enforced by courts, the Directive Principles are not justiceable. Some of the rights are
available to all persons living in India, while some are available only to the citizens of
India. Both the chapters on Fundamental Rights and Directive Principles reflect the rights
contained in the Universal Declaration of Human Rights. In 1976, through the 42nd
Amendment of the Constitution, the provision for Fundamental Duties has also been
included in the Constitution to emphasise the idea that citizens have to fulfill certain
obligations to claim rights. The provisions for Fundamental Rights and Directive Principles
suggest the vision of the Constitution of India for respect for human dignity, equality and
justice.
58 Human Rights: Indian Perspective

4.7 TERMINAL QUESTIONS

1. How has right to equality been provided in the Constitution of India?
2. Describe the freedoms provided in the chapter on Fundamental Rights.
3. What is the importance of Freedom of Religion? How has this been guaranteed by
the Constitution?
4. How can a citizen get his / her Fundamental Rights enforced in case of violation by
state?
5. How do the Directive Principles of State Policy reflect the provisions of Economic,
Social and Cultural Rights?
6. What is the importance of including Gandhian principles as directives in chapter III
of the Constitution?
7. Describe in brief the relationship between Fundamental Rights and Directive Principles.
8. Describe the relevance of inclusion of provision for Fundamental Duties in the
Constitution.

SUGGESTED READINGS
1. Adawal, Shankar, (2009) “Human Rights” The Reality and Challenges (Delhi:
Academic Excellence India).
2. Austin, Granville, (1999) The Indian Constitution: Corner Stone of Nation, Delhi
Oxford University Press.
3. Basu, D.C. Introduction to the Constitution of India. New Delhi: Prentice-Hall.
4. Chaube, Kinkar, Shibani (2009), “The Making and Working of the Indian
Constitution”, New Delhi: National Book Trust, India.
5. Chiranjivi, (1999), Nirmal J., “Human Rights in India, Historical, Social and
Political Perspectives”, published by Oxford University Press, New Delhi.
6. Iyer, V.R. Krishna (1990) Human Rights and Human Wrongs, Delhi: B.R. Publishing
Group.
7. Nirmal, C.J., ed., (1999) Human Rights of India: Historical, Social and Political
Perspectives (New Delhi: Oxford University Press.
8. Shankar, A, (2009), Human Rights the Reality and Challenges, published by
Academic Excellence, New Delhi-110031 India.
9. Vijapur, A Abdulrahim P. and Kumar Suresh (1999) Perspectives on Human
Rights, New Delhi: Manak Publisher.