Why do we need to assert our constitutional rights?
John
Amalraj K
Article Published in ‘Christian
Manager’ magazine, Oct-Nov 2018, Vol. 18, Issue 3, Chennai
The arrest, trial and the final crucifixion of
Jesus Christ of Nazareth recorded in the Gospels was a mockery of all human rights
that was in existence during the first century. It was an irony that this happened
in the Roman Empire where the judicial system was meant to protect its subjects
from violation of their rights. Moreover, the Jewish religious structure where the
Law of Moses was sacrosanct also failed, as political agenda, power play, false
allegations, corruption and false witnesses hastened the climax leading to the crucifixion
of Jesus. We now know that all this happened to fulfill the Scriptures and it was
part of God’s plan for the redemption of the world.
Today, we need to ask the question – whether as
followers of Jesus Christ, why do we need to assert our constitutional rights as
citizens of our nation. The prophet Micah gives us an example of God laying his
case against the people of Israel and asserting his rights (Mic 6). Prophet Malachi
takes God’s arguments further as he questions the people of Israel for breaking
their part of the covenant (Mal 1). When he was being flogged and interrogated,
Paul the apostle asserted his Roman citizenship rights before the Centurion (Acts
22:22-29). Later Paul was put on trial before Governor Festus. During his defence
when the Governor attempted to transfer his trial to Jerusalem, he asserted his
citizenship rights and appealed to Ceaser. (25:9-12)
Origin of Human Rights
When the city of Babylon was conquered by King
Cyrus of Persia in the year 539 BC, he announced freedom to all slaves, freedom
to choose one’s own religion and mandated the equality of all races marking a landmark
in the origin of human rights. From Babylon, the ideas of human rights spread to
the East and the West. The concept of natural law arose in the observation that
people tended to follow certain unwritten laws according to their conscience. This
gave the Romans the rational ideas derived from the nature of things. Documents
such as the Magna Carta (1215), the Petition of Right (1628), the US Constitution
(1787), the French Declaration of the Rights of Man and of the Citizen (1789), and
the US Bill of Rights (1791) are the written precursors to many of today’s human
rights documents.[1]
The Old Testament takes us back to the Law of
Moses. There are similarities and differences between the legal systems followed
by the near eastern nations of that time. They reflect the values, ethics and the
principles of the cultures followed by the people of Israel and their counterparts.
The people of Israel were taught the sanctity of human life through the laws and
that any offence or disobedience is not just in relation to other human beings but
against God Himself. Provision was made for a just and equitable society in Israel.[2]
The Universal Declaration of Human Rights (UDHR)
was a milestone document in the historical sequence of human rights.[3]
The Declaration was proclaimed by the United Nations General Assembly in Paris on
10 Dec 1948 as a common standard of achievements for all peoples and all nations.
It sets out, for the first time, fundamental human rights to be universally protected.
India voted in favour of the resolution on the universal declaration of Human Rights.
The Rights as Incorporated
in the Indian Constitution
The Indian Constitution is unique in South Asia because
of its secular framework. India is secular but not an anti-religious state.
There are several rights guaranteed under the Indian
Constitution for its people and citizens. ’Ignorance
of law is not an excuse is a legal principle holding that a person who is unaware
of a law may not escape liability for violating that law merely because he or she
was unaware of its content.’[4]
We need to learn those rights if we are to witness effectively[5].
We need to teach our children, congregations, and communities their rights. The
core of these constitutional rights are categorised into seven fundamental rights.
Rights to Equality
(Articles 14-18)
The Constitution
guarantees equality to all persons within India and not merely to citizens. This
right stands for the principle of equality before law, equal protection of the law
as well as social equality. This right prohibits the state from any discrimination
on the basis of religion, race, caste, sex, place of birth, or any other grounds.
The right to equality brought to end the practice of untouchability and abolished
all titles except military and academic distinctions. This right also grants equality
of opportunity in matters of public employment and public office to all citizens.
Rights
to Freedom (Articles 19-22)
The Constitution guarantees the right to freedom of speech and expression;
to assemble peaceably and without arms; to form associations or unions; to move
freely throughout the territory of India; to reside and settle in any part of the
territory of India; and to practise any profession, or to carry on any occupation,
trade or business. The right to freedom guarantees that no person shall
be deprived of his life or personal liberty except according to the procedure established
by law. No person can be convicted of any offence except as provided by law, or
prosecuted or punished for the same offence more than once, or compelled to witness
against himself. No person can be arrested and detained in custody beyond 24 hours
without being produced in front of a Magistrate and getting an order.[6]
The right to freedom also includes the Right to
Education which has been implemented from April 2010 providing free
and compulsory education for children between the ages of six to fourteen years.
Rights Against Exploitation
(Articles 23-24)
These rights prohibits traffic of human beings, begging and forced labor. The right against exploitation also prohibits employment
of children below the age of 14 years in factories and hazardous contexts, etc.
The freedom of conscience, free profession, practice, and propagation of religion
subject to public order, morality and health for every person. This freedom grants
the right to every religious denomination and or any section within it the right
to establish and maintain institutions for religious and charitable purposes and
manage its own affairs in matters of religion as well as own, acquire and administer
properties. This freedom provides that no person can be compelled to pay taxes or
contribute towards expenses for promotion of any particular religion. It also gives
freedom in attendance at religious instructions or religious worship in educational
institutions run fully or partly with state funds.
Rights of Minorities
(Articles 29-30)
The fundamental rights of
minorities grant the freedom to conserve their own distinct language, script and
culture[7]. No citizen can be denied the
right to admission in state run educational institutions on the basis of only religion,
race, caste, language or any of them. This right also grants the religious and linguistic
minorities the right to establish and administer educational institutions of their
choice. The state cannot discriminate in providing funds for any of the educational
institutions run by the minorities on the basis of religion or language. The state
cannot compulsorily acquire properties of educational institutions owned or administered
by minorities without ensuring that their fundamental rights are not restricted.
Rights to Constitutional
Remedies (Article 32)
The constitution provides
every person the right to approach the highest court in India – Supreme Court by
appropriate proceedings to enforce the fundamental rights including pleading to issue the Writs (judicial orders) of (i) Habeas corpus, (to produce a person arrested
before a judge or into a court to seek the person’s release presumed to be illegally
detained) (ii) Mandamus, (a judicial command
to a person to perform a public or statutory duty) (iii) Prohibition, (an order
to forbid an action) (iv) Certiorari (an
order to review a lower court decision by a higher court) and (iv) Quo warranto (require a person to show by
what warrant an office or franchise is held, claimed, or exercised).
Right to Privacy (Article
21)
This is an
intrinsic part of the right to personal life and liberty enshrined in the
Constitution as part of the rights to freedom. The words ‘Right to Privacy’
is not mentioned in the constitutional text. The Supreme Court constitutional
bench in its milestone judgment on 24 August 2017 declared that ‘Privacy is
the constitutional core of human dignity’.[8] The judges further declared, ‘The
right to be let alone is a part of the right to enjoy life. The right to enjoy
life is, in its turn, a part of the fundamental right to life of the
individual.’ This has implications ‘from what people say online to who
they love, to what they eat. Privacy includes at its core the
preservation of personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also connotes a right to
be let alone. Privacy safeguards individual autonomy and recognises the ability
of the individual to control vital aspects of his or her life. Personal choices
governing a way of life are intrinsic to privacy.’
The right to privacy again came into limelight in the Supreme
Court’s unanimous judgment on declaring parts of the Section 377 of the Indian
Penal Code (IPC) as unconstitutional on 6 Sept 2018. It further upheld the
principles of constitutional morality against social morality, the rights of
the minority against the majority and protection against any discrimination.
The historic majority judgment on the issue of Aadhaar Scheme
delivered on 26 Sept 2018 by the Supreme Court held that the right to privacy
has its limitations subject to a threefold test of legality, legitimate state
aim and proportionality. The court in
its verdict said that ‘there is a
legitimate goal and requirement to have the Aadhaar law and that it is
constitutionally fair and gives dignity to the marginalised’. The court
however restricted the government to use Aadhaar only for subsidies, benefits
and services provided from the consolidated fund of India – and restrained
private corporate bodies like banks, telecom companies etc., from using Aadhaar
authentication. It also said that Aadhaar enrolment is voluntary. The judges had earlier observed: ‘In an age where information technology
governs every aspect of our lives,’ the court ‘has to be sensitive ... to the opportunities and dangers posed to
liberty in a digital world and prevent intrusion into the personal lives of
people’.
These
judgments on the ‘right to privacy’
gives hope that the understanding of constitutional rights will continue to
evolve to protect citizens.
Other Constitutional Rights
Right to Work
The Indian Constitution does not explicitly recognise the 'Right to Work' as a fundamental right. It is placed in Part IV (Directive Principles of
State Policy) of the Constitution under Article 41, which makes it unenforceable
in the court of law. The state is directed to make effective provision for securing the right
to work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want within the limits
of its economic capacity and development. In pursuant of this a law was enacted called ‘The Mahatma Gandhi National
Rural Employment Guarantee Act, 2005’ which guarantees one hundred days of employment in every financial year to adult
members of any rural household willing to do public work-related unskilled manual
work at the statutory minimum wage[9].
Right to Information
The Supreme Court, in State of UP vs Raj Narain – a 1974 case, recognised the ‘right to know’ as a right inherent in fundamental Right to freedom of speech and expression guaranteed under the Constitution. Following this, in many other cases the courts declared that the right to information was recognised as a right implicit in the fundamental right to life and personal liberty. In Peoples Union for Civil Liberties vs Union of India, the Supreme Court observed that in Right of information is a facet of the freedom of ‘speech and expression’ as contained in the Constitution. Finally, the government enacted The Right to Information Act, 2005 to recognise the citizen’s right but did not amend the Constitution to explicitly state it as a fundamental right. The Act established a practical regime for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The act constituted Central and State Information Commissions and provided for appointment of Public Information Officers. The revelation of information in actual practice may conflict with other public interests including the preservation of confidentiality of sensitive information[10]. The Right to information process has been a boon to the citizens to know the reasons behind various decisions of the government.
Right to Property
The Indian Constitution
does not recognise the right to property as a fundamental right after the amendment
in the year 1977[11].
Prior to the amendment the right empowered citizens to acquire, hold and dispose
of any property {Article 19 (1) (f) & 19 (5)}. However, the amendment provided
the state the power to appropriate / acquire property for social-welfare purposes
and provide equitable compensation as per law (Article 31).
Freedom is not Unlimited
Constitutional rights are subject to limitations like
any other freedom. Freedom and liberty has no meaning unless there are certain limitations.
Every right is subject to public order, morality and health. These rights do not prevent the State from making any law imposing, reasonable restrictions on
the exercise of any of the rights conferred either in the interests of the general
public or for the protection of the interests of the scheduled castes and tribes,
women, children, minorities, etc.
Attempts to Regulate Freedom of Religion
In the present
Indian context, the issue of the freedom of religion has come to the centre
stage. The Indian Christian community feel deprived of the fundamental rights as
guaranteed in the Constitution. More than others, Christ followers who believe that
it is their duty to preach the Good news and serve the oppressed, marginalised and
the downtrodden have been subject to unwarranted criticism. Sunder Raj[12]
has extensively dealt with these false allegations and misplaced criticism in
his scholarly response in the book titled The Confusion called Conversion
published as early as in the eighties. Mangalwadi also defends the cause of
Christian missions[13]
and argues[14]
the importance of the scriptural mandate to serve others.
Several attempts
have been made in the Parliament to bring in a law to ban conversion or regulate
the freedom of religion. In the year 1968, Madhya Pradesh enacted a law called ‘Madhya Pradesh Dharma Swatantra Adhiniyam’
and Orissa enacted the ‘Orissa Freedom of
Religion Act’. In 1978, Arunachal Pradesh enacted the ‘Arunachal Pradesh Freedom of Religion Act’, all with a view to regulate
conversion. The Orissa High court had struck down the state Act in 1973 but the
Supreme Court on appeal upheld the validity of the same, thus reversing the Orissa
High Court judgment. Justice CJ Ray in his judgment in Rev Stainislaus vs Madhya
Pradesh (1977) case concluded that the Constitution does not grant the right to
convert[15]
another person to one’s own religion but only to transmit or spread one’s religion
by an exposition of its tenets. Later several other states like Chhattisgarh, Gujarat, Himachal Pradesh, Uttarakhand and Jharkhand
have enacted similar laws to regulate the freedom of religion. The state of Tamil
Nadu enacted ‘The Tamil Nadu Prohibition of Forcible Conversion
of Religion Act, 2002’ but later repealed the same in 2006.
There are three
frequently asked questions with regard to the right to freedom of religion /
conversion.
Does a citizen
have the right to preach, propagate his/her religion?
All citizens have
the right to preach and propagate their religion subject to public order, morality
and health. A citizen can practice, preach and propagate with a view to convince
another person to accept his/her faith and belief. However, the practice and action
should not lead to break down of law and order, injure the religious feelings of
others, insult any religion or religious beliefs by words either spoken or written,
or by signs or by visible representations with deliberate and malicious intentions[16].
The act of preaching
and propagating should not be accompanied by the use of force, fraud (misrepresentation
or any other fraudulent contrivance) and inducement (the offer of a gift or gratification
either in cash or in kind, grant any benefit, either pecuniary or otherwise)[17].
People who are
benefited by any benevolent acts of social service and development programmes voluntarily
out of their own free will, may make a decision to convert subject to following
any legal procedure prescribed in that state for change of religion.
Do citizens have
the right to convert (change) from one religion (faith, beliefs) to another?
All citizens have
the right to convert from one religion to another. They need not continue to be
part of the religion into which he/she was born. The Supreme Court upheld this
right in its judgment dated April 10, 2018 on the case of Hadiya, a 26 year old
girl who converted to Islam and married a Muslim man[18].
The court observed
that a person's right to choose a religion …..is an intrinsic part of her
meaningful existence……Freedom of faith is essential to his/her autonomy;
Choosing a faith is the substratum of individuality and sans it, the right of
choice becomes a shadow,” . Neither the State nor “patriarchal supremacy” can
interfere in her decision. However, before conversion, the person (/s) must
fulfill the legal obligations, like signing an affidavit, and obtain permission
from the District Magistrate or any other designated officer as may be
prescribed by the State. Conversions from certain religious backgrounds may affect
marital status and socio-religious obligations[19].
After conversion, marriage may be dissolved and the person may not be able to participate
in religious ceremonies or perform rites in their former religion. Minor children
must obtain written consent on an affidavit from parents and married women must
obtain written consent on an affidavit from husband.
Do citizens have the right to convert another person
from one religion (faith, beliefs) to another?
Citizens do not
have the right to convert any other person from one religion to another. Conversion
is an individual’s decision exercised voluntarily of their own free will. The act
of baptism is a ceremony of initiation into the Christian faith / religion and not
necessarily the act of conversion itself as per the Christian tradition. However,
the law sees ‘baptism’ as the formal act of conversion.
Conclusion
As Indian citizens,
we have several rights and it is Scriptural to exercise those rights. We need to
exercise our rights with discretion for the greater benefit of the community among
whom we live. The Scripture encourages us to be willing to undergo personal suffering
even unjustly (I Pet 2:11-21; 3:17). Paul exhorts the Corinthian church to forego
their rights, for the sake of those with weak conscience and then he also mentions
about his voluntary act of foregoing his rights as an apostle. (I Cor 8:9-13; 9:12-18)
Jesus gave up His rights and humbled Himself in obedience on the cross to redeem
the world (Phil 2:6-11). We are called to assert our rights on behalf of those who
are voiceless and oppressed but at the same time; we are also called to voluntarily
give up our rights for a greater cause. Human rights and freedom of choice are given
by God and no law, authority or force can remove that inherent freedom. Let us act
wisely as we assert our Constitutional rights and witness to the Gospel.
John Amalraj served as staff with India Missions Association (1993-2005)
and Interserve India (2006-2017). He is trained in Law, Management and Theology.
As a Mission Field Partner of Interserve he is involved in mobilising churches for
missions, mentoring leaders, enabling strategic thinking and envisioning Christ’s
disciples to witness in the marketplace. John is married to Jessie
who serves as an English Language trainer. They are blessed with two sons, Jason
(25) and Joash (17).
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[3] http://www.un.org/en/universal-declaration-human-rights/
[4] http://www.lex-warrier.in/2017/08/ignorance-of-law-is-not-an-excuse/
[5] Legal Education Series published by Indian Social Institute, New Delhi
has several booklets.
[6] https://blogs.timesofindia.indiatimes.com/lawtics/know-your-rights-part-1-rights-of-an-arrested-person/
and https://www.vakilno1.com/legal-news/rights-arrested-person.html
[7] Devadasan, E. D., Rights of the Minorities under the Constitution, Management of Indian Missions, 1998, pp 99
- 101
[9] http://vikaspedia.in/agriculture/policies-and-schemes/rural-employment
[10] https://onlinerti.com
[11] http://www.lawyersclubindia.com/articles/Right-to-Property-under-the-Indian-Constitution
[12] Sunder Raj, The Confusion Called Conversion,
(Chennai: Bharat Jyoti), 1988.
[13] Mangalwadi, Vishal, Missionary Conspiracy: Letters to a
Postmodern Hindu, (Mussoorie: Nivedit Good Books Distributors Pvt. Ltd.),
1996.
[14] Mangalwadi, Vishal, Why must you Convert? (Mussoorie:
Nivedit Good Books Distributors Pvt Ltd.,) 1999.
[15] According to the Shorter Oxford Dictionary, the word
‘convert’ means “to cause to turn to a religion, belief or opinion, specially
to bring to Christianity” and the word ‘conversion’ means “the action of
converting or the fact of being converted to a religion, belief or opinion,
specially to Christianity.”
[16] Refer Indian Penal Code Sections 295 - 298
[17] H.
M. Seervai, Constitutional Law Of India,
(Bombay: N.M.Tripathi Pvt. Ltd.), 1993, p. 1286, (Sec.
2 & 3 of the Orissa Freedom of Religion Act)
[18] https://www.livelaw.in/right-change-faith-part-fundamental-right-choice-read-reasons-scs-decision-hadiya-case/
[19]Ibid., p. 1277, (refer Hindu Marriage Act, 1955, Dissolution of Muslim
Marriage Act, 1939, Indian Divorce Act, 1869 & Converts Marriage Dissolution
Act, 1866)
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