The Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or sex. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.
The six fundamental rights are:
Right to equality
Right to freedom
Right against exploitation
Right to freedom of religion
Cultural and educational rights
Right to constitutional remedies
Rights literally mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into the Fundamental Law of the Land and are enforceable in a court of law. However, this does not mean that they are absolute or that they are immune from Constitutional amendment.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
Significance and characteristics
The Fundamental Rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the Fundamental Rights.
All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their Fundamental Rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation". In some cases, High Court judges have acted on their own on the basis of newspaper reports.
These Fundamental Rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some Fundamental Rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the Fundamental Rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.
Right to equality
Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:
Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State[5] cannot discriminate against a citizen on the basis of caste, creed, colour, sex, religion or place of birth.[13] According to the Electricity Act of 26 January 2003 the Parliament has the power to create special courts[14] for the speedy trial of offences committed by persons holding high offices. Creation of special courts is not a violation of this right.
Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.
Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.
Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.
Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.
Right to freedom
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 following six freedoms:[20]
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 the 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 the sovereignty and integrity of India.
Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the 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 travelling, 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 by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as 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 of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an 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 a 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 personal 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 by law. This means that a person's life and personal 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. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in the year 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In the year 1996 however another Supreme Court ruling nullified the earlier one) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.
Critical analysis
The Fundamental Rights have been criticised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of Fundamental Rights in times of Emergency. The provisions of acts like MISA (Maintenance of Internal Security Act) and NSA (National Security Act) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.
Privileges are benefits enjoyed by an employee because of certain criteria, pending approval from higher management. i.e. Privileges are things to which one has a just claim ….BUT ..
[Privileges + Approval from Authority ≈ Rights]
Rights are the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. Most modern concepts of rights are universalist and egalitarian, i.e. equal rights are granted to all people.
There are two kinds of rights: natural rights (certain list of rights enshrined in nature that cannot be legitimately modified by any human power) and legal rights (rights that are human constructs, created by society, enforced by governments and subject to change).
[Rights ≈ Privileges enjoyed Irrespective of Approval]
Eligibility is defined as condition(s)/requirement(s)/criteria that must be met/fulfilled in order to participate in a plan. An individual has to apply for the entitlements if all the required eligibility criteria are fulfilled.
Entitlement is a guarantee of access to benefits because of rights, or by agreement through law. It can also refer, in a more casual sense to someone's belief that he/she is deserving of some particular reward or benefit.
[Eligibility for Privileges → Fulfilment of Eligibility Criteria → Entitlement]
1. Privileges
↓
2. Request/Apply for Entitlement
↓
3. Eligibility
↓
4. Approval from Authority
↓
5. Entitlement GRANTED for Privileges
3.4. Defining Entitlement and Eligibility
Some key concepts must be defined early in the planning process to establish criteria of eligibility and entitlement for APs. This will reduce confusion in data collection and facilitate delivery of support and services to the entitled persons.
Affected Persons
APs are defined as those who stand to lose, as a consequence of the project, all or part of their physical and non-physical assets, including homes, communities, productive lands, resources such as forests, range lands, fishing areas, or important cultural sites, commercial properties, tenancy, income-earning opportunities, and social and cultural networks and activities. Such impacts may be permanent or temporary. This most often occurs through land expropriation, using eminent domain or other regulatory measures. They have no option but to reestablish elsewhere. People can also be affected through exposure to health and safety hazards which then force them to relocate.
Unit of Entitlement
The unit of entitlement may be an individual, a household, a family or a community. Bank policy recognizes the concept of household as a unit for data collection and impact assessment. As a rule, the unit of loss should determine the unit of entitlement. However, if more than one person has customary rights to a resource (for example, common property), the compensation may be shared by all. Households headed by women are to be recognized and compensated equally with households headed by men. Widowed women or divorcees living within male-headed households and having no legal rights to land may be considered as separate units for relocation purposes. Usually, major children within the household are not eligible for full entitlements, but are compensated for any lost assets and assisted to restore any lost livelihoods.
Loss and Eligible Impact
Defining loss and eligible impact is important because some losses are more visible or tangible than others. For example, loss of agricultural land, structures, or loss of crops do not require any definitions. Other losses, such as access to livelihood sources (for example, tenant or sharecroppers losing 'user rights' to land or wage laborers losing opportunities to work on land), require investigation to establish resettlement effects.
Establishing Eligibility Criteria for Resettlement
The three important elements of involuntary resettlement are : (i) compensation for lost assets, incomes, and livelihoods; (ii) assistance for relocation; and (iii) assistance for rehabilitation to achieve at least the same level of well-being with the project as without it. Bank policy requires analysis of the losses experienced for each case through census and survey. This is often subject to a "cut-off" date used to minimize fraudulent practices. In situations where APs are left with non-viable farm-holdings, project management should always allow income restoration and resettlement eligibility.
Valuation of entitlements and grievance methods
The Bank policy has no reference for valuating entitlements except for the general principle that APs should be at least as well off after the project as before it. In other words, valuation of their property and assets should be at the replacement value. Bank's practices also recognize this principle to ensure protection of interests and the well-being of the APs. In the case of non-inclusion in the APs list or inadequate compensation, an AP must have recourse to established dispute resolution and grievance procedures.
Compensation options
The Bank's policy refers to compensation, relocation of APs, and rehabilitation. There is no discussion of cash as a mode of compensation. However, Bank practices discourage cash compensation for land, except in cases with limited impact only, such as a strip of land required for a right of way that does not threaten livelihoods. Replacement land, "topping up" or additional cash grants to purchase land, job creation and employment, and often a mix of these options have been applied in many projects. APs should be offered multiple options, from which to choose to restore livelihood.
Income restoration programs
Income restoration programs should include both land-based and nonland-based options depending on the pre-project income-generating activities of APs. See Chapter 7 for a greater discussion of income restoration.
Rights vs. Privilege
Too often, people misconstrue the nature of rights and privilege. In the context of unionized labor forces, this confusion is widespread and apparent: unions couch employment in terms of one's "right" to work, while in more efficient, non-unionized workforces, employment is rightly seen as a privilege granted to the employee by the company for which he works.
Not for nothing are companies with non-unionized workforces (generally) performing better than companies with unionized workforces.
Similarly, the difference between privately-funded education and publicly-funded education can be seen in terms of the right vs. privilege dichotomy: private schools educate their children well because their employees understand they work not because of a contractual right to work, but because they are being given the privilege to teach young children and cultivate their minds.
Nowhere are the perverse incentives of the employment-is-a-right thinking more apparent than in this anecdote:
It was only the first day ofschool, and already Christyn Pope was in trouble. Pope, the principal at Chavez Elementary School in the Southcrest section of San Diego, gave a television news interview in which she happened tomention the fact that the school lawn had turned brown overthe summer and that the weeds were out of control. But that wasn't what landed Pope in hot water....
What got Pope in trouble that day was when she let slip the factthat some parents were interested in volunteering their time to pull the weeds and to fix broken sprinkler heads for the lawn. She had forgotten that the unionized landscapers had a right todo the work, and if they couldn't do it,no one was allowed to make sure the weeds were cut. "The union called me right away, and told me what I said was illegal," Pope told the San Diego Union Tribune, referring to the California School Employees Association, the union that represented the laid-off grounds keepers.
Note the odd language Pope chooses to use: "what I said was illegal." This is a strange inversion of the normal logic we Americans operate under: on the one hand, the unionized employees had a "right" to work, but, because their right was contractually protected, Pope's right to free speech--the parents want to help curtail weed growth--had been restricted
http://en.wikipedia.org/wiki/Entitlement
Entitlement
Entitlement is a guarantee of access to benefits because of rights, or by agreement through law. It can also refer, in a more casual sense to someone's belief that he/she is deserving of some particular reward or benefit.[1] It is often used as a negative term in popular parlance (i.e. a 'sense of entitlement'). The legal term, however, carries no value judgment: it simply denotes a right granted. It was issued in 1965 by President Johnson's administration.
In 2007, approximately 2/3 of the United States Federal budget consisted of entitlement payments.
In computer security, it can also refer to access control.
http://www.isixsigma.com/dictionary/Entitlement-236.htm
As good as a process can get without capital investment. Alt. A perceived "right to demand." Opposite of a gift, in that it is without appreciation. A "you owe me" obligation for which, I owe nothing in return.
http://en.wikipedia.org/wiki/Right
Right
In jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. Compare with privilege, or a thing to which one has a just claim. Rights serve as rules of interaction between people, and, as such, they place constraints and obligations upon the actions of individuals or groups (for example, if one has a right to life, this means that others do not have the liberty to murder him).
Most modern conceptions of rights are universalist and egalitarian - in other words, equal rights are granted to all people. There are two main modern conceptions of rights: on the one hand, the idea of natural rights holds that there is a certain list of rights enshrined in nature that cannot be legitimately modified by any human power. On the other hand, the idea of legal rights holds that rights are human constructs, created by society, enforced by governments and subject to change.
By contrast, most pre-modern conceptions of rights were hierarchical, with different people being granted different rights, and some having more rights than others. For instance, the rights of a father to be respected by his son did not indicate a duty upon the father to return that respect, and the divine right of kings to hold absolute power over their subjects did not leave room for many rights to be granted to the subjects themselves. The concept of natural right developed in the School of Salamanca in the late 16th century, and first gained widespread acceptance nearly 200 years later, during the Age of Enlightenment.
It is not generally considered necessary that a right should be understood by the holder of that right; thus rights may be recognized on behalf of another, such as children's rights or the rights of people declared mentally incompetent to understand their rights. However, rights must be understood by someone in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights. Therefore, educational opportunities within society have a close bearing upon the people's ability to erect adequate rights structures.
There are two fundamental controversies surrounding the notion of rights: First, there is the question of the basis for rights (on what basis rights can be said to exist). Second, there is the question of the content of rights (what the rights of a person actually are).
Types of rights
In modern English and European systems of jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. Compare with duty, referring to behaviour that is expected or required of the citizen, and with privilege, referring to something that can be conferred and revoked.
The specific enumeration of rights accorded to citizens has historically differed greatly from one century to the next, and from one regime to the next, but nowadays is normally addressed by the constitutions of the respective nations. Generally speaking (within the English and European systems) a right corresponds with a complementary obligation that others have on the same object or realm; for instance if someone has a right on a thing, simultaneously another party or parties have an obligation to do something (or to abstain from doing something) in order to respect that right or to give concrete execution to that right.
Property rights provide a good example: society recognizes that individuals have title to particular property as defined by the transaction by which they acquired the property granting the individual free use and possession of the property. In many cases, especially regarding ideological and similar rights, the obligation depends on the legal system in its entirety, or on the state, or on the generical universality of other subjects submitted to the law.
Societal rights or civil rights are bestowed to its citizenry by society and are a set of obligations that are purported as a social contract. Societal rights are a privilege of membership and the benefits are limited to its members though may be extended to temporary guests. Access to societal rights are dependent government grants and on the citizen fulfilling their obligations e.g. complying with laws and paying taxes.
The right can therefore be a faculty of doing something, of omitting or refusing to do something or of claiming something. Some interpretations express a typical form of right in the faculty of using something, and this is more often related to the right of ownership of property. The faculty (in all the above mentioned senses) can be originated by a (generical or specific) law, or by a private contract (which is sometimes exactly defined as a specific law between or among volunteer parties).
Other interpretations consider the right as a sort of freedom of something or as the object of justice. One of the definitions of justice is in fact the obligation that the legal system has toward the individual or toward the collectivity to grant respect or execution to his/her/its right, ordinarily with no need of explicit claim.
Aristotle, in the Nicomachean Ethics (book five), claims that there is a large difference between written (generalized) justice and what is actually right for the (specific) individual.
(10-3) "But what obscures the matter is that though what is equitable is just, it is not identical with, but a correction of, that which is just according to law."
(10-4) "The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms. Where, then, it is necessary to speak in general terms, but impossible to do so correctly, the legislator lays down that which holds good for the majority of cases, being quite aware that it does not hold good for all."
"The law, indeed, is none the less correctly laid down because of this defect; for the defect lies not in the law, nor in the lawgiver, but in the nature of the subject-matter, being necessarily involved in the very conditions of human action."
Rights can be divided into individual rights, that are held by citizens as individuals (or corporations) recognised by the legal system, and collective rights, held by an ensemble of citizens or a subgroup of citizens who have a certain characteristic in common. In some cases there can be an amount of tension between individual and collective rights. In other cases, the view of collective and individual rights held by one group can come into sharp and bitter conflict with the view of rights held by another group. For instance compare Manifest destiny with Trail of Tears.
With reference to the object of the right, a common general distinction is among:
Intellectual rights, which include:
Civil rights
Religious rights
Rights of opinion
Real rights (from the Latin word "res", thing), which include:
Property rights
Rights of use
Liberties
Personal rights, as a credit.
See also: human rights, exclusive rights, negative and positive rights, natural rights, civil rights, legal rights, contractual rights.
Important documents
Magna Carta (1215; England)
Required the king of England to renounce certain rights and respect certain legal procedures, and to accept that the will of the king could be bound by law.
Bill of Rights 1689 (England)
Declared that Englishmen, as embodied by Parliament, possess certain civil and political rights that can not be taken away.
Declaration of the Rights of Man and of the Citizen (1789; France)
One of the fundamental documents of the French Revolution, defining a set of individual rights and collective rights of the people.
United States Bill of Rights (1789/1791)
The first ten amendments of the United States Constitution.
Universal Declaration of Human Rights (1948)
An over-arching set of standards by which Governments, organisations and individuals would measure their behaviour towards each other. The preamble declares that the
"...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
Other general Declarations from the UN have followed, notably the UN Convention on the Rights of the Child, 1989 [1].
European Convention on Human Rights (1950)
Adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms.
Canadian Charter of Rights and Freedoms (1982)
Its purpose is to protect rights of Canadian citizens from actions and policies of all levels of government.
Charter of Fundamental Rights of the European Union (2000)
Individual rights
"Individual rights" represent the moral rights of individuals in society prior to government. Individual rights are principles that identify and sanction certain interactions between individuals in a society while excluding others. For some theorists, individual rights delimit how the individual may use force in defense of person and property. Other theorists consider individual rights as describing the limits to which collective interests may be imposed on individuals.
Individual rights are distinct from civil or legal rights as these are rights granted by government to citizens and will vary with the organization and administration of governments. Individual rights identify a boundary of just social interactions in presence or absence of government.
Individual rights are sometimes held to be distinct from human rights, because human rights often references a basket of civil and individual rights. The former class of rights is often considered to include human goods and benefits (positive rights) rather than rights proper (negative rights.) Individual rights are an individual's moral claim to freedom of action. Such rights may be respected or recognized by others for reasons of reciprocity, contract, pragmatism, or as a moral imperative. Also some theorists believe an individual can forfeit their rights if that individual does not exercise reciprocal respect and restraint.
Social Control and Individual Rights
In Western discourse, individual rights are commonly assumed to be inversely related to social control. By contrast, much of the recent political discourse on individual rights in the People's Republic of China, particularly with respect to due process rights and rule of law, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
People who argue that individual rights are more important than social control are called "individual rights advocates". Advocates tend to argue for increased civil rights. This is traditionally associated with liberalism.
Role of Government
Individual rights are often codified into law so that they may be protected by impartial third parties such as the government. Governments that respect individual rights often provide for systemic controls that protect individual rights such as a system of "due process" in criminal justice. These systems give rise to such civil rights as are necessary for the governemnt to administer justice. With respect to individual rights the role of the government is as a third party protecting, identifying and enforcing the rights of the individual while attempting to assure just remedies for transgressions. Police states are generally considered to be oppressive because they do not respect individual rights.
Rights are significant only where corresponding duties and responsibilities exist and people have the ability to enforce them - because society and individual survival depend on people relying on their ability to enforce rights people must be able to enforce those obligations where there is an absence or a betrayal of trust. Obligations are enforced by individuals and societal expectations and norms, but ultimately may require the ability or the actual enforcement by a government. The absence of a firm ability to enforce rights increases the risks associated with entering agreements and relying on rights, which limits individuals and societies ability to operate co-operatively.
The definition and upholding of individual rights is the core responsibility of any modern government.
In the United States, the Constitution outlines individual rights within the Bill of Rights. In Canada, the Canadian Charter of Rights and Freedoms serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they deliberately do so and "the resulting balance of individual rights and social rights remains appropriate to a free and democratic society" after the change. In practice, no Canadian government has ever chosen to face the political consequences of actually overriding the Charter. In contrast, in the United States, no such override exists (not even in theory, as is the case in Canada), and judicial activism has been the norm in the interpretation of the Bill of Rights; even a constitutional amendment could not remove these rights entirely, as they are considered inalienable under the natural rights principles the Constitution is founded upon.
What Rights
The idea of individual rights is closely related to the idea of individual capital in some theories of political economy, in which the individual enhances his or her own creative capacities (as opposed to measurable productive capacities, which is usually called the theory of human capital), and must remain free to do so in any way she or he sees fit. The most prominent advocate of this approach, called "development as freedom", is economist Amartya Sen. In this view, individual rights have the economic purpose of enabling each individual to optimize his or her capacity to make a unique contribution others cannot make.
More recent human development theory combines this view with a more rigorous ecological economics and means of measuring well-being. Individual rights such as "freedom from toxins" or "freedom to garden", e.g. cultivating hemp, assume a central role in most such theories, and have indeed been upheld in some countries, e.g. Canada, in which the individual is recognized as having a right to plant native plants in defiance of any social control, as part of the existing "right of free expression" and "freedom of conscience".
Some claim the Universal Declaration of Human Rights, 1948, and subsequent declarations, established individual rights, in theory, as the basis of international legal norms. Others claim exactly the opposite, that Declaration destroys individual rights rather than establishing them.
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Many thinkers dispute the validity of the distinction between negative and positive rights, which they see as being purely a matter of semantics. It can be said that any negative right involves an entitlement to protection against some form of abuse, and is therefore just as "positive" as a positive right. Others would counter that the exercise of negative rights doesn't require any action on the parts of others or the government (e.g., you could conceivably exercise free speech without anyone else acting to help you, whereas free health care cannot happen without actions from others).
Amendments
Changes in Fundamental Rights require a Constitutional amendment which has to be passed by a special majority of both houses of the Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha.
The right to property was originally included as a fundamental right. However, the 44th 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" to further the goals of socialism.[38]
The right to education at elementary level has been made one of the Fundamental Rights under right to life and personal liberty by the 86th constitutional amendment of 2002.[28]
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