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Thursday, October 18, 2007

Fundamental Rights of Indian citizens

The Fundamental Rights embodied in the Indian constitution are guaranteed to all Indian citizens. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus.

In addition, the Fundamental Rights for Indians are aimed at overturning the inequities of past social practices. They abolish "untouchability"; prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid traffic in human beings and forced labor. They go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions.

Originally, the right to property was also included in the Fundamental Rights; however, the Forty-fourth Amendment, passed in 1978, revised the status of property rights by stating that "No person shall be deprived of his property save by authority of law." Freedom of speech and expression, generally interpreted to include freedom of the press, can be limited "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence" (see The Media, this ch.).
Directive Principles of State Policy INDIA

An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble.

The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities" .
India
Group Rights

In addition to stressing the right of individuals as citizens, Part XVI of the constitution endeavors to promote social justice by elaborating a series of affirmative-action measures for disadvantaged groups. These "Special Provisions Relating to Certain Classes" include the reservation of seats in the Lok Sabha (House of the People) and in state legislative bodies for members of Scheduled Castes and Scheduled Tribes. The number of seats set aside for them is proportional to their share of the national and respective state populations. Part XVI also reserves some government appointments for these disadvantaged groups insofar as they do not interfere with administrative efficiency. The section stipulates that a special officer for Scheduled Castes and Scheduled Tribes be appointed by the president to "investigate all matters relating to the safeguards provided" for them, as well as periodic commissions to investigate the conditions of the Backward Classes. The president, in consultation with state governors, designates those groups that meet the criteria of Scheduled Castes and Scheduled Tribes. Similar protections exist for the small Anglo-Indian community.

The framers of the constitution provided that the special provisions would cease twenty years after the promulgation of the constitution, anticipating that the progress of the disadvantaged groups during that time would have removed significant disparities between them and other groups in society. However, in 1969 the Twenty-third Amendment extended the affirmative-action measures until 1980. The Forty-fifth Amendment of 1980 extended them again until 1990, and in 1989 the Sixty-second Amendment extended the provisions until 2000. The Seventy-seventh Amendment of 1995 further strengthened the states' authority to reserve government-service positions for Scheduled Caste and Scheduled Tribe members.
Emergency Provisions and Authoritarian Powers

Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidentially proclaimed states of emergency. The constitution provides for three categories of emergencies: a threat by "war or external aggression" or by "internal disturbances"; a "failure of constitutional machinery" in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of life and personal liberty, may be suspended, and federal principles may be rendered inoperative. A proclamation of a state of emergency lapses after two months if not approved by both houses of Parliament. The president can issue a proclamation dissolving a state government if it can be determined, upon receipt of a report from a governor, that circumstances prevent the government of that state from maintaining law and order according to the constitution. This action establishes what is known as President's Rule because under such a proclamation the president can assume any or all functions of the state government; transfer the powers of the state legislature to Parliament; or take other measures necessary to achieve the objectives of the proclamation, including suspension, in whole or in part, of the constitution. A proclamation of President's Rule cannot interfere with the exercise of authority by the state's high court. Once approved, President's Rule normally lasts for six months, but it may be extended up to one year if Parliament approves. In exceptional cases, such as the violent revolt in Jammu and Kashmir during the early and mid-1990s, President's Rule has lasted for a period of more than five years.

President's Rule has been imposed frequently, and its use is often politically motivated. During the terms of prime ministers Nehru and Lal Bahadur Shastri, from 1947 to 1966, it was imposed ten times. Under Indira Gandhi's two tenures as prime minister (1966-77 and 1980-84), President's Rule was imposed forty-one times. Despite Mrs. Gandhi's frequent use of President's Rule, she was in office longer (187 months) than any other prime minister except Nehru (201 months). Other prime ministers also have been frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap (V.P.) Singh (two times in eleven months), Chandra Shekhar (four times in seven months), and P.V. Narasimha Rao (nine times in his first forty-two months in office).

State of emergency proclamations have been issued three times since independence. The first was in 1962 during the border war with China. Another was declared in 1971 when India went to war against Pakistan over the independence of East Pakistan, which became Bangladesh. In 1975 the third Emergency was imposed in response to an alledged threat by "internal disturbances" stemming from the political opposition to Indira Gandhi (see The Rise of Indira Gandhi, ch. 1; National-Level Agencies, ch. 10).

The Indian state has authoritarian powers in addition to the constitution's provisions for proclamations of Emergency Rule and President's Rule. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the start of the Emergency in 1962, the government enacted the Defence of India Act. This legislation created the Defence of India Rules, which allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defence of India Rules were reimposed during the 1971 war with Pakistan; they remained in effect after the end of the war and were invoked for a variety of uses not intended by their framers, such as the arrests made during a nationwide railroad strike in 1974.

The Sikh militant movement that spread through Punjab during the 1980s spurred additional authoritarian legislation (see Insurgent Movements and External Subversion, ch. 10). In 1984 Parliament passed the National Security Amendment Act enabling government security forces to detain prisoners for up to one year. The 1984 Terrorist Affected Areas (Special Courts) Ordinance provided security forces in Punjab with unprecedented powers of detention, and it authorized secret tribunals to try suspected terrorists. The 1985 Terrorist and Disruptive Activities (Prevention) Act imposed the death penalty for anyone convicted of terrorist actions that led to the death of others. It empowered authorities to tap telephones, censor mail, and conduct raids when individuals are alleged to pose a threat to the unity and sovereignty of the nation. The legislation renewing the act in 1987 provided for in camera trials, which may be presided over by any central government officer, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to a terrorist act. In March 1988, the Fifty-ninth Amendment increased the period that an emergency can be in effect without legislative approval from six months to three years, and it eliminated the assurance of due process and protection of life and liberty with regard to Punjab found in articles 20 and 21. These rights were restored in 1989 by the Sixty-third Amendment.

By June 30, 1994, more than 76,000 persons throughout India had been arrested under the Terrorist and Disruptive Activities (Prevention) Act. The act became widely unpopular, and the Rao government allowed the law to lapse in May 1995.

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