Reflections on fundamental rights: They’re like our relatives – we think we know them, but we don’t

In these days of Covid-19, I keep getting WhatsApp forwards advising me to keep my mind busy by thinking and reflecting about the situation we’re in so that I can keep myself from sliding into depression. Following this advice, I realised that reflection is always an inward and mostly a private journey but that thoughts can be shared. So, in these days of frozen life but active hatred, I started conceptualising an article about our fundamental rights and whether they are indeed guaranteed to allow me to insulate myself from the potent hatred around us.

Endless discussions at home, on the phone and in the print and electronic media have convinced me that most of us neither remember our Constitution or our fundamental rights and obligations nor understand their importance in our everyday life. They are like our relatives. You think you know them but in fact you don’t. You have no idea about their insecurities, passions, ambitions or intimacies. Even our parents, siblings, our children are what we make them out to be: our images, our stereotypes, our construction of what we believe them to be. So, most communication, unfortunately, is not so much about them but smugly about ourselves.

At the outset, it would do us some good to remind ourselves that we have given ourselves our Constitution and that the document truly is one of the people, for the people, by the people. Like a normal human beings, the chapter on fundamental rights comes with its own set of insecurities, passions, ambitions, and I propose to discuss a few of them here.

Citizenship rights

Let us start by examining the insecurities. As I see it, Article 15 of the Constitution, which expressly prohibits any form of discrimination, was formulated on account of the apprehension that there was a possibility of discrimination on grounds of religion, race, caste, sex or place of birth and hence included in the part containing the Right to Equality. Please note that, among other things, it also mentions “place of birth”.

This must probably be seen in the context of Article 5, which conferred citizenship rights, among other things, to a person born in India. However, Article 6 carves out an exception to include such persons who migrated from Pakistan, and Article 8 if born elsewhere if either of the parents, grandparents were born in India, upon fulfilling certain other perfunctory conditions.

Once we have established citizenship let us see what it means in terms of a citizen’s rights and obligations.

Citizens’ obligations

Article 14 says that that all persons are equal before the law so the State shall not discriminate against any person. State here means the State itself or any instrumentality of the State, so in effect a citizen cannot raise any grievance before a Court of discrimination against a private person unless it is prohibited by substantive law.

Nonetheless, because the very opening of the Constitution says we give ourselves equality, every citizen asserts himself as an equal even in the social order and obligates others to recognise his right. He may not be able to enforce it in a court of law when a private person violates such a right. But that does not diminish its importance because when we willingly accepted the Constitution, we professed to be equal and now there is no going back so long as we are citizens of India and the Constitution exists. All those who claim obtuse entitlement are clearly completely wrong and it would be a good idea that steps be taken to read the Constitution to them.

Apart from Article 14, we find that Article 25 gives the assurance that one can not only practice any faith but also propagate it. This guarantee is noteworthy because by specifically giving ourselves the freedom of faith, we recognise not only equality amongst citizens but equality also amongst faiths.

In these unsettling and insensitive times, when concerted efforts are being made to undermine the minority faith by circulating fake and mischievous news, we should initiate a fair dialogue on this aspect. And who would do it more effectively than the State. But before that, it will have to formally recognise the efforts of individuals who are trying to create harmony and not put them behind the bars on the flimsiest of excuse and stretching the law to absurd proportions. Instead, the State would have to take action against those who are disrupting our normal lives.

Violating the Constitution

As a person who dabbles in law, I am surprised that the person seen in a video asking people not to buy vegetables from Muslims, for obvious reasons, has not been proceeded against legally. The perpetrators of such acts, and those affording him protection, are either not aware of their constitutional obligations, or, are wilfully flouting them. On both counts they are anti-national because they are violating the sanctity of the Constitution.

It is also a matter of grave concern that persons only of one community are being arrested for having conspired to start the riot in Delhi and participated in violence when as per news reports both communities had indulged in it. I would most certainly advocate a right to equality in such matters, without absolving anyone of rioting.

I may clarify here that I am a somewhat privileged Hindu and do not speak for my Muslim brethren. However, such acts not only offend my sense of justice but also my right to equality. Hence, I cannot under any circumstances condone them. When efforts are made to divide society unequally, you create two sets of unequals. It gives me no comfort that I belong to the majority because, any act which offends the Constitution is unacceptable to me, as it should to the State. Also, because it negates the unconceivable effort, sacrifices and the great erudition of our worthy forefathers, who not only fought for our independence, but also wrote out a document that we willingly gave ourselves and built a nation.

I may point out here that it is in assertion of this right to equality that lawyers are presently raising objections to the petition filed by a TV anchor, against whom multiple FIRs had been instituted, being listed out of turn. The Court treated it as most urgent even though there was no urgency in the matter, even as other lawyers were struggling to get their urgent cases listed. The grievance is non-justiciable, I know, but it is also true that it is raised because one knows one has a right to equal treatment, more so, before a Court of law. This does not call for any interpretation by the Courts. It is a simple equation where two plus two only adds up to four.

Right to freedom

To proceed, let us examine our Right to freedom, of all kinds of things, so we can live in an orderly political society, even while exploiting our individual potentiality to its fullest, as human beings. This part is akin to human passions.

Article 19 provides for freedom of speech, amongst other things. Importantly, the Supreme Court has always been quick to uphold freedom of speech except in matters of contempt. In Indian Express Newspapers (Bombay) Pvt Ltd & Ors v Union of India [(1985) 1 SCC 641], where the Supreme Court was considering customs duty on imported paper and the extent of government control in the name of public good. While holding that the press had freedom of expression, it explained that freedom of expression had four broad purposes to serve:

1 It helped an individual to attain self fulfilment

2 It assisted the discovery of truth

3 It strengthened the capacity of an individual in participating in decision making

4 It provided a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

All members of the society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle is the people’s right to know.

Next right to freedom is Article 21, which is acknowledged as the ultimate of all freedoms since it prohibits the deprivation of life and personal liberty of a person, except in accordance with procedure established by law. Importantly, even a non-citizen enjoys this liberty. The Supreme Court has interpreted it to mean a lot of things including freedom to live a life of dignity and not an animal existence.

Freedom of expression

While I was conceptualising this article on fundamental rights, the Palghar lynching happened, in which a mob in a district near Mumbai killed three people. For reasons known best to him, an ace TV anchor picked up the news and started verbally lynching a political person, of whom I am no supporter, and some other journalists for not having spoken up. As a TV anchor, he assumes he has the freedom of expression and hence inflicts insults on others, touching upon their dignity.

Since the anchor is formally not a state or its instrumentality, evidently, he cannot be dragged to court for assertion of the right to dignity though he is clearly punishable under provisions of substantive law. At the cost of repetition, clearly the recognition of a right to dignity being a fundamental right creates a corresponding obligation on the likes of the TV anchor and prohibits them from violating a person’s right to dignity. The right to dignity is a basic human right and under no circumstances can it be compromised, no matter who the players.

In line with the views of the Supreme Court mentioned above, I have a novel though radical idea which is that all TV channels should be obliged to display the relevant provisions of law governing the topic of discussion and then proceed with the programme so the audience reaches an informed conclusion.

For example, when reporting about the migrants struggling to get home, it must be displayed that ours is a welfare state, with an equality clause in our Constitution so the audience knows their demands deserve the same attention from the State as those waiting to be flown in or out in an aeroplane. It would be something like the statutory warning on cigarette boxes which says, “Cancer is injurious to health.” The print media can do likewise. This might help in educating our citizens of not only of our rights but also importantly of our obligations and may contribute meaningfully in nation-building. This might also stop the demolition squad from its acts of violence against our Constitution and we might then be able to achieve a greatness our nation deserves, which goal was set out in the preamble.

Role of Supreme Court

This article would be incomplete without a mention of the ambition of the Constitution enshrined in Article 32, which makes the Supreme Court the ultimate upholder of our constitutional rights. However, of late we have seen some unhappy situations where the Supreme Court has withheld exercising its jurisdiction on issues of our fundamental rights, giving a fillip to the theory that interpretation of rights largely depends on the personal beliefs of a worthy judge.

My concern is that if the Courts, which are constitutionally enjoined to uphold the fundamental rights of a citizen, are so nebulous in upholding the virtues of the Constitution, how effectively and how long can we, as citizens, object to the acts of private persons trampling on others fundamental rights?

Under these circumstances, when our fundamental rights are what the Courts make them out to be, I wonder whether it would have been enough for the Constitution to have just said;

Every citizen has a right to be (which includes a right not to be, according to General Clauses Act).

It would then in effect translate to:

I have a right to be an equal

I have a right to be a Hindu or Muslim or Christian or Parsi or Sikh or an atheist.

I have a right to be a Scheduled Caste or a Scheduled tribe or an Adivasi...

...And, so on and so forth.

Then maybe one would not have had the right to insult, to dominate the will of another, and yet one would have had the right not to be insulted, a right not to have one’s will dominated, a right not to be treated unequally. Simplistic solutions.

Since I am a die-hard optimist, even if nothing is done by anyone, I refuse to lose hope and will continue to sing the famous title song from Phir Subah Hogi: “Woh subah kabhi toh ayegi, woh subah kabhi toh ayegi…” The morning will come sometime.

But even as I do this, I am almost certain an anti- national will pop up out of nowhere and ask me menacingly, “Subah Hindu hogi ya Mussalman?” Will the morning be Hindu or Muslim?

Anjana Prakash is a Senior Advocate and former judge of the Patna High Court.