Civil and Political Rights

The Civil and Political Rights : Civil and political rights are a class of rights ensuring things such as the protection of peop people les s phys physic ical al inte integr grit ity; y; proc proced edur ural al fair fairn ness ess in law; law; prot protec ecti tion on from from discrimination based on gender; religion; race; sexual orientation, etc; individual freedom of belief, speech, association, and the press; and political participation. Contrast Contrast with economic economic.. Social Social and cultural cultural rights, rights, civil and political political rights rights are includ included ed in Univer Universa sall Declar Declarati ation on of Human Human Right Rights s and elabor elaborate ated d upon upon in the International Covenant on Civil and Political Rights.   The The civil civil and polit politica icall right rights s are are intima intimatel tely y relat related ed to moder modern n democr democracy acy.. The The protection of these rights would help the success of democracy. These rights are   The Rights to life, liberty and security of person;  Freedom from slavery and torture;  Equality before the law;  Protection against arbitrary arrest, detention or exile;   The Right to a fair trial;   The Right to own property;   The Right to political participation;   The Right to marriage;   The Fundamental freedoms of thought, conscience and religion, opinion and expression;  Freedom of peaceful assembly and association;   The Right to take part in the government of his/ her country, directly or through freely chosen representatives. representatives.  The Indian Constitution contains many of these rights in Part III under Fundamental Rights. The Nature and Evolution of Civil and Political Rights: A range of international standards on human rights have been developed through the UN system since 1945. These standards fulfill part of the mandate of the UN under its Charter to promote universal respect for and observance of human rights. In 19 1948 48 the the UN adop adopte ted d the the Univ Univer ersa sall Decl Declar arat atio ion n of Huma Human n Righ Rights ts,, whic which h procla proclaime imed d a set of funda fundamen mental tal rights rights to which which ‘every ‘everyone one’’ is entitl entitled ed withou withoutt discrimination. The Declaration was intended as a common standard of attainment for all nations. It was not, however, seen at the time as imposing binding legal obligations on governments (although many international lawyers have concluded that the Declaration now has substantial legal force). Moreover, it proclaimed rights only in general terms, rather than setting out in detail how those rights should be translated into law and practice. The last fifty five years have seen the development of more more detail detailed ed ins instru trume ments nts.. Standa Standards rds have have been been develo developed ped concer concernin ning g the human rights of particular vulnerable groups. These standards are involved in a series of Declarations, Covenants, Treaties, Principles and Rules. Many international treaties and other instruments guarantee civil and political rights and include a number of provisions specifically addressing the rights of persons with disabilities. The main treaty at the international level is the International Covenant on Civil and Political Rights (ICCPR). In addition, the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC) also contain guarantees of civil and political rights, as do the International Convention on the Elimination of 

All Forms of Racial Discrimination (CERD), and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Regional human rights conventions also contain guarantees of civil and political rights.

International Instruments for the Protection and Promotion of Civil and Political Rights The coverage of the International Covenant on Civil and Political Rights  The ICCPR was adopted by the UN General Assembly in 1966. It requires that all Parties ‘respect and ensure to all individuals within their territory and subject to their jurisdiction’ the rights which the Covenant recognises. The ICCPR covers a range of traditional civil and political rights, often referred to over simplistically as ‘negative’ rights, enforceable only in relation to the actions of the State. These rights include (amongst others): the right to life (Article 6); the right to freedom from cruel, inhuman or degrading treatment or punishment (Article 7); the right to liberty and security of the person (Article 9); the right to be treated with respect for dignity and with humanity, if  deprived of liberty (Article 10); the right to freedom of movement and choice of residence (Article 12); the right to equality before courts and tribunals, and to a fair hearing in any criminal case or law suit; to be presumed innocent until proved guilty if  charged with a criminal offence; and, in determination of any criminal charge, to guarantees including the right of every person: • •

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to be informed promptly, in detail and in a language the person understands of the nature and cause of the charge; to be tried without undue delay to be tried in his or her presence, and defend himself or herself in person or through counsel of his or her own choosing; to have legal assistance assigned where required by the interests of   justice, free of charge where the person has insufficient means to pay; to examine witnesses; to have the free assistance of an interpreter if he or she cannot speak the language used in court (Article 14); •

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the right to recognition as a person before the law (Article 16); the right to freedom from arbitrary interference with privacy or family life (Article 17); the right to freedom of conscience and religion (Article 18); the right to freedom of opinion, expression and information (Article 19); the right to freedom of association including the right to form and join trade unions (Article 22); • •

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the right to marry and found a family (Article 23); the right of children to special protection (Article 24); the right to take part in public affairs, to vote and to be elected, and to have access on equal terms to public service (Article 25); and the right of people belonging to ethnic, religious or linguistic minorities to enjoy their own culture, practice their religion or use their own language, in community with other members of their group (Article 27). • • •

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RIGHT TO PERSONAL FREEDOM  The constitution of India contains the right to freedom, given its article 19, 20, 21, 22 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution Personal freedom in the context of human rights guarantees that the state has a responsibility to:  Protest us from torture and degradation.  Protest us from slavery or forced or compulsory labour.  Guarantee us a fair examination and effective remedy in case of violate of  rights.  Ensure our right to liberty, freedom of thought and freedom of expression.  Protect us from discrimination and prohibit abuse of our rights.  The right to freedom in article 19 guarantees the following six rights.  Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, ‘freedom of press’ has not been used in article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in interest of public order, security of state, decency or morality.  Freedom to assemble peacefully without arms, on which the state can impose reasonable restrictions in the interest of public order and sovereignty and integrity of India.  Freedom to form association or unions on which the state can impose reasonable restrictions the interest of public order and sovereignty and integrity of India.  Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and traveling, so as to control epidemics.  Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions in the state in the interest of general public or for the protection of scheduled tribes because certain safeguards are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.  Freedom to practice any profession or to carry on any occupation, trade or business on which the state may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business

which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.  The constitution also guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:  Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. “Compulsion” in this article refers to what in law is called “Duress” (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law.  This principle was first established in the Magna Carta.  Protection of life and liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except law. This means that a person’s life and liberty can only be disputed if  that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. “Personal liberty” includes all the freedoms which are not included in Article 19. The right to travel abroad is also covered under “personal liberty” in Article 21.  In 2002, through 86 th amendment act, article 21 (A) was incorporated. It made the right to primary education part of the right to freedom, stating that state would provide free and compulsory education to children from six to fourteen years of age.  Rights of person arrested under ordinary circumstances are laid down in the right to life and personal liberty Article 22 no one can be arrested without being told the grounds for his arrest. If arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy or alien. They are also not available to persons detained under the “Preventive Detention Act”. Under preventive detention the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.

FREEDOM OF EXPRESSION OR FREEDOM OF SPEECH Freedom of expression is a cornerstone of democratic rights and freedoms. Freedom of speech and expression enable an individual to participate in public activities. Freedom of speech is the freedom to speak freely without restriction or limitation. The synonymous term freedom of  expression is sometimes used to denote not only freedom of verbal speech

but any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

Importance of the right to freedom of expression and speech: 

Freedom of expression is essential in enabling democracy to work and public participation in decision-making.  Citizens cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely.  Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy.  Violations of freedom of expression often go hand in hand with other violation, in particular the right to freedom of association and assembly.

Indian constitutional framework on freedom of expression:  The constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in article 19 guarantees the freedom of speech and expression as one of the freedom. Freedom of expression or speech is recognized in international and regional human rights law. The right is protected in article 19 of the International covenant on civil and political rights, article 10 of the European convention on Human rights, article 13 of the American convention on human rights, and article 9 of the African charter on human and peoples’ right to freedom of speech today is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:   The right to seek information and ideas;   The right to receive information and ideas;   The right to impart information and ideas. International, regional and national standards also recognizes that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also means of expression.

Relationship to other rights:  The right to freedom of speech is closely related to other rights, and may be limited when conflicting with other rights. The right to freedom of 

speech is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all reasonable restrictions.  The freedom of speech and of the press does not confer an absolute right to express without any responsibility; reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action. With the same token clause (2) of article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads: i. ii. iii. iv. v. vi. vii. viii.

Security of the state Friendly relations with other states Public order Decency and morality Contempt of court Defamation (insult) Incitement (encouragement) to an offence, and Sovereignty and integrity of India.

Limitation of freedom of speech: 

 The freedom of speech is not absolute. Legal systems, and society at large, recognize limits on the freedom of   speech, particularly when freedom of speech conflicts with other values or rights. Exercising freedom of speech always takes place within a context of   competing values. Limitation to freedom of speech may follow the “harm principle” or the  “offense principle”. For example in the case of pornography or “hate speech”. Limitations to freedom of speech may occur through legal sanction. 

RIGHT TO FREEDOM OF RELIGION (ARTICLE 25-28) Articles 25,26,27,28 provide the right to freedom of religion. Article 25 deals with the freedom of conscience and free profession,  practice and propagation of religion. Article 26 deals with freedom to manage religious affairs.  Article 27 deals with freedom of payment of taxes for promotion of any  particular religion. Article 28 deals with freedom to attend religious instruction or religious  courtship in certain education institutions.

Article 25 deals with the freedom of conscience and free profession, practice and propagation of religion. Article 25 (1) guarantees the right to profess, practice and propagate religion. This freedom is not absolute. It can affect laws for social welfare and reform. Article 25 (2) provides that nothing in article 25 shall affect the operation of  any existing laws. Article 25 (2) (a) provides that the state can make any law regulating or restricting which may be associated with religious practice. Freedom to manage religious affairs article 26 Every religious section can care the following four freedoms.   To establish and maintain religious and charitable institution.   To manage religious affairs.    To own and acquire immovable and movable property for the institution.   To administrate such property in accordance with law. Freedom from payment of taxes for promotion of any particular religion (article 27)  No person should be compelled to pay taxes towards the promotion of  any particular religion.  Every person has the freedom to pay money to any religious fund he likes.  In the same way, taxes collected by the state should not be spent for the promotion of any particular religion. Religious instructions in schools (Article 28) Article 28 imposes restrictions on religious instruction in government institution. It speaks about four types of educational institutions. 1. Institutions wholly maintained by state. 2. Institutions recognized by state. 3. Institutions that are receiving aid out of state fund. 4. Institutions that are administered by the state but are established under any trust or endowment. 

If the educational institutions are maintained wholly by the state, then there should be no religious instructions.  If the institutions are recognized by the state and only receive aid from the government fund, then the religious instruction may be imparted with the consent of the students.

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If the institutions are established under any religious trust endowment, then the religious instruction classes can be carried on even without the consent of the students.

RIGHT TO EQUALITY (ARTICLE 14 – 18) Article 14-18 of the constitution guarantees the ‘Right to Equality’ Article 14 guarantees equality before law and equal protection of law. Article 15 prohibits discrimination on the grounds of religion, race, caste or place of birth. Article 16 guarantees the equality of opportunity in matters of public employment. Article 17 abolishes untouchability in the country. Article 18 abolishes titles other than military distinctions. Article 14-Equality before law  Article 14 of the Indian constitution guarantees “state shall not deny to any person equality before the law or equal protection of the law”.  Article 14 applies to any person and is not limited to citizens alone.  Both individuals and juristic persons are entitled to benefit article 14.  Rights in article 14 directs that “All persons shall be equal before the court and tribunals”  Article 14 protects persons against discrimination among equals not only by substantive law but also by law of procedure.  Article 14 restricts class legislation but at the same time it permits reasonable classification.  Article 14 recognizes the actual fact of practical life. It means among equals, equal laws shall be applicable and among unequal same shall not be applicable.  Supreme Court has laid down two conditions which are as follows. i.  The classification should be found on intelligible difference. ii. The differentia must have rational relationship with the object of  law. Article 15 (Prohibit discrimination on the grounds of religion)  Article 15 (1) provides that shall not discriminate against any citizen on the grounds of religion, race, caste, sex, place of birth or any of them.  Article 15 (2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subjected to any disability, restriction or condition with regards to access to shops, public restaurants, hotels, and places of public entertainment.  Article 15 (3) lays down that nothing in this article shall prevent, the state from making any special provision for women and children which is recognized universally.  Article 15 (4) provides that nothing in article 15 shall prevent the state from making any special provision for the advancement of any socially

and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Article 16 (Equality of opportunity in matters of public employment)  Article 16 (1) provides that there shall be equality of opportunity for all citizens in matters relating to employments and appointments to any office under state.  Article 16 (2) provides that no citizens shall be on grounds of religion, race, caste, sex, place of birth, residence or any of them , be in eligible for, or discriminated against in respect of any employment or office under the state.  Article 16 bars discrimination not only in the matter of initial employment but also for the promotion and termination of service.  If safe guards not only against communal discrimination but also against local discrimination or discrimination against the weaker section. Exceptions  Article 16 (3) (4) (5) are the exceptions to this general rule of equality of opportunity.  Article 16 (4) permits the state to male provisions for reservation of  some appointments in favor of backward class, office of religious institutions. Article 17 (abolition of untouchability)  Article 17 provides that untouchability is abolished and its practice any form is forbidden.  Article 17 must be read with article 35 (a) (ii) which confers upon parliament the exclusive power to make laws prescribing punishment for those acts which are declared to be offences under part (III) of the constitution.    This led to the enactment of untouchability act in 1955 by the parliament of India.   This act was amended in 1976 and the amended act has been given the name of protection of civil right act, which came into force on 19 th November 1976. Article 18 (Abolition of titles)  Article 18 provides that no titles, not being a military nor academic distinction shall be conferred by a state.  No citizen of India shall accept any title from any foreign state.  No person who is not a citizen, while he holds any office under state, accept without the consent of the President, entitle from any foreign state.   The ban under article 18 operates only against state.  Military and academic distinctions are exempted under article 18.

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  The government confer such honors as Ashoka Chakra, Virchakra, Param Vir, etc.,

RIGHT TO PROPERTY (Article 31)  The right to property prior to 44 th amendment 1978 was a fundamental right under article 37 of part III of the constitution. But by the 44th amendment, the right to property was taken away from fundamental rights it was made as a constitutional right.   The effect of deleting “Right to property” from fundamental rights and making it a constitutional right is as follows:  The right to property is only a constitutional right and therefore the remedy for the offered party will be to convoke the jurisdiction of High Court. No person shall be deprived of his property saved by the authority of law. Article 31 (1) guaranteed the property the property right A property could not be taken by executive order or rule or by law. Article 31 (2)  This article was amended four times originally it read as follows: “A movable or immovable property belonging to an individual should not be taken as possession or acquired for public purposes except by providing for compensation under a law”.  The 44th amendment introduced two changes it read “A property should not be compulsorily acquired or requisitioned for a public purpose except by providing compensation”.  The 44th amendment introduced a new clause remembered as 31 (2) (A). It read “if there is no transfer of ownership or possession then it is not compulsory acquisition and hence compensation needs to be paid. Even after 44th amendment, the controversy in article 31 (2) (A) was not settled. The adequacy of compensation under 44th amendment was questioned. After 45th amendment the word ‘compensation’ was replaced by the word amount. It introduced a new article 31 (C). It reads that the acquisition of  property for public purpose under article 31 (C). RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32) Under the Indian constitution, the Supreme Court and high court empowered to issue writs for the enforcement of fundamental rights enriched in part III of  the constitution. Under article 32 of Indian constitution the Supreme Court can issue writ.   The following are the provisions regarding the writ jurisdiction of the Supreme Court. 1. A person can file a writ petition in the Supreme Court directly without approaching the high court. 2. The Supreme Court is empowered to issue writs for infringement of  fundamental rights under part III of the constitution. Thus the Supreme Court is the guarantor of fundamental rights.

3. The Supreme Court has power to issue directions or orders or writs for the enforcement of the fundamental rights. 4. Article 32 can never be suspended. The writ jurisdiction of the Supreme Court is permanent and never can be suspended. 5. The writ jurisdiction of Supreme Court is narrow because it is confined to fundamental rights. Writ jurisdiction of high court Article 32 – the writ jurisdiction of the Supreme Court does not in any way affect the writ jurisdiction of the high court under article 26. Every high court has the power of issuing writs to any persons or authority including government within its jurisdiction.  The power of high court to issue writs does not in any way interfere with the writ jurisdiction of Supreme Court.   The writ jurisdiction of high court is discretionary in regard to constitutional rights. Sometimes writs are refused on the following reasons.  If there is an adequate alternative remedy.  If there is delay.  If the conduct of the petition is tainted with illegality.  In the interest of justice the writ may not be granted.  If the petition involves a dispute over a question of fact.   The complained infringement of a right must be an existing legal right.  Regarding a common grievance an association can file a writ petition. •

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RIGHT TO CONTRACT According to section 2(h) Indian Contract Act “an agreement enforceable by law is contract” According to Sir Fredric Pollock “Every agreement and promise at law is contract” According to section 2(e) of the Indian Contract Act “Every promise and every set of promises forming the consideration for each other is an agreement”. Essential of valid contract:   There should be an agreement between two parties.  An agreement arises when one party makes proposals of offers and other party accepts the offer.   The parties to the agreement should be competent to contract.   There should be lawful consideration and lawful object in respect of the agreement.   There should be free consent of the parties when they enter into the agreement.   The agreement must not be one which has been declared to be void.

RIGHT TO VOTE AND CONTEST IN ELECTION:  The election commission is responsible to direct and control elections.  The election commission shall consist of the Chief election commissioner and such other elections commissioners as the President may fix from time to time.   The election commissioner and regional commissioners cannot be removed from office during their tenure except on the recommendation of the chief  election commissions. It was also held that   The Election commission could be a multimember body. It is a permanent body with a chief election commissioner.   The Election commissioner ranks below Chief election commissioner and the Regional commissioner ranks below the election commissioner.   The chief election commissioner is not superior (i.e.) election commissioner and regional election commissioner have a say in decision making.  The election performs the following functions. 1. The superintendence, detection and control of the preparation of the electoral rolls for all elections to parliaments for all election to parliament, state and the offices of President and Vice-President. 2. Appointment of Election tribunals for decoding doubts and disputes arising out of election to parliament. 3. The conduct of the elections. 4. Advising the President and the Government on the question of  disqualification of any member of parliament or a state legislature.  There shall be one general electoral bill for every territory constituency and no person shall be ineligible for inclusion in and such roll on grounds of any religion, caste, sex.  The elections to the parliament and state legislature are to be held on the basis of adult suffrage.  The following are the essential to fulfill by a person to be entitled to register as a voter:  He must be an Indian citizen.  He must not less than eighteen year of age.  He should not be unsound.  He should not be disqualified on the ground of non residency, crime, corrupt illegal practice. •

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RIGHT TO INFORMATION  The Right to Information is derived from our fundamental right of expression under Article 19 of the Constitution of India. Article 19 (1) says that every citizen has freedom of speech and expression.

It came into force on the 12th October, 2005 (120th day of its enactment on 15th June, 2005). Some provisions have come into force with immediate effect. RTI Act not applicable to Intelligence and Security Organization.   The Act extends to the whole of India except the State of Jammu and Kashmir. Right to information is defined under Section 2(j) as: "right to information" means the right to information accessible under this. Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records. (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies. tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; ‘ Information can be demanded from all Public authorities, i.e. all Govt. bodies and organizations substantially financed by Government including NGOs.

Chief Information Commissioner (CIC) is the head of all the information officers. The State Information Commission will be selected by the State Government through a Gazette notification. It will have one State Chief  Information Commissioner (SCIC) and not more than 10 State Information Commissioners (SIC) to be appointed by the Governor. At the end of year CIC is required to present a report which contains: (a) The number of requests made to each public authority; (b) The number of decisions where applicants were not given permission to access to the documents which they request, the provisions of the Act under which these decisions were made and the number of times such provisions were filed; (c) Details of disciplinary action taken against any officer in respect of the administration of the Act; (d) the amount of charges collected by each public authority under the Act PIO shall deal with requests from persons seeking information. Following information is not disclosed: •

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information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, “strategic, scientific or economic" interests of the State, relation with foreign State or lead to incitement of an offence;

information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

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information, the disclosure of which would cause a breach of privilege of Parliament or  the State Legislature;

information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; information received in confidence from foreign Government; information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistancegiven in confidencefor law enforcement or security purposes; information which would impede the process of investigation or apprehension or prosecution of offenders; cabinet papers including records of deliberationsof the Council of Ministers, Secretaries and other officers;