Article 19: The problem of our Fundamental Rights

As 26 January approaches, it is time to examine what the day means, apart from military parades and VIPs and foreign guests.

Republic Day is a celebration of our being a nation where supreme power rests with the people. This is guaranteed through our Constitution. What we celebrate on that day is our Constitution and, in particular, the rights we enjoy as citizens and individuals.

Our Fundamental Rights are those which assure us of equality, freedom from discrimination, the right to free speech, free association and free assembly, the right to life and liberty, the right to occupation, the right to education, the freedom to propagate, practise and manage our own religion and the freedom to move the Supreme Court if our Fundamental Rights are wrongly encroached upon or violated by the State.

This set of rights appears to be potent. But do we actually possess them?

The answer is no. We are not entirely free. Let us look at how easily the State has trespassed on rights we thought had a high degree of protection from encroachment.

Article 19 is an umbrella Fundamental Right on freedom of speech, assembly, association, movement and profession. It reads: ‘All citizens shall have the right to: freedom of speech and expression; assemble peaceably and without arms; form associations or unions; move freely throughout the territory of India; reside and settle in any part of the territory of India; practise any profession, or to carry on any occupation, trade or business.’

The reality is that none of these rights actually exist in the form they are supposed to.

India’s first constitutional amendment (legislated under Jawaharlal Nehru) restricts these Rights by qualifying them — meaning that the State was given the authority to curb them through so-called ‘reasonable restrictions’.

Free speech, for instance, can be controlled by ‘reasonable restrictions… 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’.

The State can pass any legislation it sees fit along the lines above, which are so broad as to fit almost anything into them. Let’s see the multiple ways the government has infringed upon the rights supposedly enshrined within Article 19.

The Right of Indians to assemble peacefully has been blocked by both law and process. Citizens do not really have this right to peaceful assembly.

They have the right to seek police permission to assemble peacefully. The police have the right to approve, deny or not reply (which is often the tactic used by the State in India, to ensure deniability). Assembly in the absence of written permission is treated as a violation of the law. Readers will be familiar with Section 144 of the Criminal Procedure Code, which gives the State the right to arrest people engaged in ‘unlawful assembly’.

The Right to form associations and unions is severely limited by the process of registration. The State can deny (or delay) registration of organisations it doesn’t like. It can deregister those whose activities it does not like. It can ban those it has a problem with. Again, overbroad laws that empower the State to define individuals as ‘terrorists’ without conviction or trial are used to hinder and restrict the Right to association.

The Right to move freely across India doesn’t exist for those visiting the North-East. Rights which cannot be enforced by the rule of law do not exist. Try telling the residents of Manipur that they have the right to move freely.

The Right to reside and settle in any part of the territory of India doesn’t apply to Gujarat’s Muslims because of a law particular to that state, called the Disturbed Areas Act. It is a law that is old but has become broader with time, tightening the rules under which Muslims can rent and buy property.

The Right to practise any profession doesn’t apply to butchers who have been told by the State that they cannot slaughter livestock, explicitly denying them their Fundamental Right.

Article 19 thus gives ‘freedom’ in its text — only to entirely remove this freedom through its footnotes.

All governments by all parties that have governed India and its provinces since 1950 are okay with these restrictions. No party is different, really, in this sense. What is ‘reasonable’ is for the State to decide and the State always takes up a position against the individual.

The general assumption is that the citizen and their rights are a nuisance that get in the way of the proper administration of the State (‘good governance’). Promises made in manifestoes — for instance, the one by the Jana Sangh to remove preventive detention, which is the basis for such laws as UAPA — are promptly reversed when the party takes power.

On Republic Day, it is worth going back to the Constitution to read it and in particular read Part III, the section concerned with Fundamental Rights. This is only about a dozen pages or so, but is the heart of the Constitution so far as the individual is concerned.

Reverence for our Constitution and celebrating it with guns and tanks and planes and VIPs may be a good thing. Reading it and understanding it is even better.

Views are personal. More of Aakar Patel’s writing can be read here.