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Constitutional right

Print edition : Sep 21, 2012 T+T-

UNDER the Chapter on Fundamental Rights, Article 19(1)(d) of the Indian Constitution guarantees to all citizens the right to move freely throughout the territory of India. Article 19(1)(e) supplements this provision by guaranteeing to all citizens the right to reside and settle in any part of the territory of India. Article 19(5), however, enables the state to impose reasonable restrictions on these rights by law in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

The significance of the twin rights of movement and residence anywhere in the country is that they underline that India is one unit so far as its citizens are concerned and the division of India into States and Union Territories is only for the sake of political and administrative convenience.

Conceptually, the fundamental rights are enforceable only against the state, that is, a citizen can seek the courts intervention to protect her right if the state takes some action to violate it. But how will the citizen seek remedy if the violator of the fundamental right happens to be a non-state actor?

The twin rights of movement and residence of citizens would be meaningless if the state disowns its obligation to protect them or is indifferent to them in the face of threats to these rights from non-state actors.

Scholars of the Indian Constitution aver that the fundamental rights, generally speaking, are restrictions mainly on government activities, whether executive or legislative, to ensure that they do not infringe on an individual citizens fundamental rights. However, there are certain provisions that protect an individual from discriminatory conduct not only on the part of the state but even on the part of private persons in certain situations.

Take, for instance, Article 17, which declares that untouchability is abolished and its practice in any form is forbidden. It also says that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with the law.

The Supreme Court has stated that whenever any fundamental right such as the one enshrined in Article 17 is violated by a private individual, it is the constitutional obligation of the state to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. (See M.P. Jain, Indian Constitutional Law, 6th edition, 2010, Vol.1, page 1400).

Similar interpretations have been placed by scholars on Article 15(2), which also helps in the eradication of untouchability by requiring that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

Therefore, in the context of the reverse migration of citizens hailing from the north-eastern region of the country from other parts of India, under non-verifiable threats or duress from non-state actors, the question naturally arises whether the state has the responsibility to stop it and facilitate their early and peaceful return to the places where they had migrated, and had been gainfully employed and domiciled. Therefore, the appeal from certain eminent persons in civil society that the state must arrange for the free transport of those who had reverse-migrated to their home State following the rumours and threats in the social media in order to return to their places of employment and new domicile is consistent with the judicial interpretation of fundamental rights.

V. Venkatesan