Basics of Fundamental Rights – Indian Constitution

INTRODUCTION:

  • The Fundamental Rights are enshrined in Part III of the Constitution from Article 12 to 35
  • The Framers of the Constitution derived inspiration from the Constitution of USA, that is Bill of rights.
  • Part III of the Constitution is rightly described as the Magna Carta of India. (Magna Carta is the charter of rights issued by King John of England in 1215 under pressure from the barons. This is the first written document relating to the fundamental rights of the citizens).
  • It contains a very long and comprehensive list of justiciable fundamental rights.
  • Part III of the Constitution of India titled as Fundamental rights were secured to the people of India, certain basic, natural and inalienable rights. These rights have been declared essential rights in order that “human Liberty may be preserved, human personality may be developed and an effective social and democratic life may be promoted”.
  • The fundamental rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the People against the invasion by the state. They operate as limitations on the Tyranny of the executive and arbitrary law of the Legislature.

 

Fundamental Rights in India

The framers of the Indian Constitution followed the American model in adopting and incorporating the fundamental rights for the people of India.

 The constitution not only secures the fundamental rights, but also provides a speedy and effective remedies for their enforcement.

In People’s Union for Civil liberties (PUCL) VS. Union of India 2003 S.C

In this case the apex court observed that “the fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. The constitution is required to be kept young, energetic and alive”.

 

Features of Fundamental Rights

The fundamental rights guaranteed by the constitution are characterized by the following features :

  1. Some fundamental rights are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like Corporations or companies.
  2. These rights are not absolute but qualified. It means that state can impose reasonable restrictions on them. However whether such restrictions are reasonable or not is to be decided by the courts.
  3. Some of the fundamental rights are negative in character, that is, they place limitations on the authority of the state, while others are positive in nature, conferring certain privileges on the persons.
  4. They are justiciable in nature, allowing persons to move the courts for their enforcement, if and when they are violated.
  5. Fundamental rights are defended and guaranteed by the Supreme Court of India. Hence, the aggrieved person can directly go to the Supreme Court for their violation.
  6. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a Constitutional Amendment Act and not by an ordinary act. Moreover this can be done without affecting the “basic structure” of the constitution.
  7. Fundamental rights can be suspended during the operation of National Emergency except the rights granted under Article 20 and 21.Their application to the members of armed forces, Paramilitary forces, police forces intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).
  8. Their application can be restricted while Martial Law is in force in any area. Martial Law means military rule under abnormal circumstances to maintain law and order (Article 34).

 

Fundamental and Ordinary Rights – Distinguish

  • Ordinary legal rights e.g. rights of a consumer, shareholders, mortgagor, etc are protected and enforced by the ordinary law of the land.
      • While a Fundamental Right is protected & enforced by the Constitution.

 

  • Ordinary Rights can be changed by the common legislative process.
      • A Fundamental Right can be altered only by a Constitutional Amendment Act.

 

  • An Ordinary Right generally imposes a corresponding duty on another individual But,
      • A Fundamental Right is that right which an individual possess against the state. Hence it binds even the State.

 

  • Fundamental Rights are protected against invasion by the Executive, legislative & the Judiciary. Laws & executive actions which abridge or in conflict with such rights are void & ineffective.
      • While no such privilege in ordinary rights.

 

  • Our Constitution guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights. Thus the remedy itself is a Fundamental Right. This distinguishes it from other rights.

 

  • The Supreme Court is the guardian of Fundamental Rights and not of ordinary rights.

 

Suspension Or Denial of Fundamental Rights

The rights contained in part III are not absolute. In the larger interest of the society, these rights can be curtailed or suspended in the following cases –

  • Under article 33 Parliament may by law restrict or abrogate any of the Fundamental Rights in their application to the members of the armed forces or forces charged with maintenance of public order or other analogous forces.

( This is to maintain discipline among them otherwise they will make their Union and also go on strikes to fulfill their demands. This can create a great threat to the security of our country.)

 

  • Article 34 authorises Parliament to make laws to grant immunity in respect of acts done by any person during the operation of Martial Law in the country.

( It provides for the restrictions on fundamental rights while Martial Law is in force in any area within the territory of India.)

 

  • When a proclamation of Emergency issued under article 352 (1) is in Operation, the rights contained in Article 19 automatically stand suspended.

During the operation of such proclamation of emergency, the president may, by order suspend the remedy for the enforcement of any of the fundamental rights except those conferred by Article 20 and 21.

 

Classification of Fundamental Rights

The Constitution classifies the rights under 6 heads. Originally there were seven rights, but the Right to Property has been deleted by the 44th Constitutional Amendment act of 1978.

The Fundamental Rights are given below :

  1. Right to Equality (Article 14-18)
  2. Right to Freedom(Article 19-22)
  3. Right against Exploitation (Article 23-24)
  4. Right to freedom of Religion (Article 25-28)
  5. Cultural & Educational Rights ( Article 29-30)
  6. Right to Constitutional Remedies (Article 32)

 

Fundamental Rights : Available only to Citizens

Some Rights are available only to Citizens of India, they are :

  1. Article 15Protection of discrimination on Grounds only of religion, race, caste, sex, or Place of birth.
  2. Article 16Equality of opportunity in matters of public employment.
  3. Article 19 Freedom of speech, assembly, Association, movement, residence and profession.
  4. Article 29&30Cultural and Educational rights of the minorities.

 

Fundamental Rights : Available to all Persons

Some Rights are available to all the Persons in India, Citizens and foreigners alike, except Enemy aliens. Such rights are –

  1. Article 14Equality before law
  2. Article 20Protection in respect of conviction for offence
  3. Article 21Right to life & Personal liberty
  4. Article 21ARight to education
  5. Article 23&24Right against Exploitation
  6. Article 25 – 28Freedom of Religion

 

Positive Rights and Negative Rights

  • Some rights are in the form of prohibitions. They are a mandate to the state to not to do a particular type of act. They are negative in form, Hence called Negative Rights.

Like –  Article 14, 15(1), 16(2), 18(1), 20, 21, 22(1), 27 & 28(1)

 

  • Some of the right expressly creates and confers one or more rights, they are positively worded rights, Hence called Positive Rights.

Like –  Article 21(A), 29, 30 & 32

 

Fundamental Rights in U.S, U.K and India

The Constitution of England is Unwritten. Hence, in England there is no code of Fundamental Rights as exists in the Constitution of the United States or in other written Constitutions of the world. This does not mean however, that in England there is no recognition of those basic rights of the individual without which democracy becomes meaningless. “The object in fact is secured here in a different way. The foundation of individual rights in England may be said to be negative in the sense that an individual has the right and freedom to take whatever action he likes. So long as he does not violate any rule of the ordinary law of the land.”

Difference in approach – England and US

  • While the Englishers were anxious to protect individual rights from the abuses of executive power, 
  • the framers of the American constitution were apprehensive to tyranny not only from the executive but also from the Legislature.

 

In India, Regardless of the British opinion, the makers of our constitution adopted fundamental rights to safeguard individual liberty and also for ensuring Social, Economic and Political justice for every member of the community. Though the model has been taken from the Constitution of United States, the Indian Constitution does not go so far and rather effects a compromise between the doctrine of Parliamentary sovereignty and Doctrine of Judicial Supremacy and it contains explicit limitations on Fundamental Rights and does not give that much power as in US to Indian courts to put limitation on the Fundamental Rights.

 


Also Read :

History of Constitution

Salient features of Constitution

Introduction to IPC

Introduction to CPC

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