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Subject: Polity

Topic: Fundamental Rights

Ques. 1 What is a right? What are various kinds of Rights?

Ans. A right is a legal claim that a citizen or any other individual is granted by the Constitution or any statute. For example, right to life. It means the individual’s life can not be abridged or abolished by any one except in a manner that is prescribed in law If any one violates the right illegally, the individual can approach the court that investigates into the case and renders justice. Rights are the essence of democracy as they empower the individuals and enable to develop. Rights are generally associated with equality in contemporary times and establish a level playing field among the people-rich and poor; men and women; and various social groups. Thus, they are egalitarian in nature. They are a protection against the Government actions. Rights may be associated with obligations, there being very few absolute rights. For example, Right to Education that is made a Fundamental Right by the insertion of Art 21A by the Constitution 86th Amendment Act 2002 in India may confer the obligations on some citizens of the country to pay taxes that contribute to the revenues necessary to implement the right. Fundamental Duties that were inserted into the Constitution by the Constitution (42nd) Amendment Act 1976 are the obligations that citizens are expected to discharge. Fundamental Duties in Art. 51 A require the citizens to contribute to national and social development.

Various Kinds of Rights

Natural Rights: These are universal rights which is inherent in every individual being a part of human nature. They are not conferred by law but only recognised and made enforceable by law. For example, right to life. Human Rights: Human rights are similar to natural rights in the sense that they are universal and are intrinsic in human nature. They are needed for dignified human life and are enjoyed irrespective of social, political and other considerations. They are contained in United Nations Universal Declaration of Human Rights 1948.

Civil Rights: These are the rights that citizens of a country enjoy and are conferred by the Constitution or the law of the country. Civil rights may differ from one country to another while human rights are universally enjoyed by all.

Constitutional Rights : They are rights enshrined in the Constitution. Some enjoy special status as Fundamental Rights and some others do not enjoy such status— for instance, outside part III of the Indian Constitution ( other than Fundamental Rights).

Fundamental Rights: They are a branch of civil rights and are given higher importance in India as they are defended by the Supreme Court directly. Some Fundamental Rights are confined to citizens only while others are open to all. For example, Art. 15, 16, 19, 20 and 29 in the Chapter on Fundamental Rights in the Indian Constitution (Part III) are available to Indian citizens only. They are essential for human development, democracy and social progress.

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Ques. 2 : Fundamental Rights are fundamental in nature and is essential for the fuller development of an individual. Discuss?

Ans. Fundamental Rights are important for the individual to live with dignity and the society to evolve meaningfully. Constituent Assembly of India borrowed the concept of Fundamental Rights from American Constitution where they are found in the Bill of Rights. In fact, Fundamental Rights are given so much importance that if they are violated, the aggrieved individual can approach the Supreme Court of India directly (Art.32). Supreme Court can issue writs mentioned in Art.32 for the defence of the Fundamental Rights. High Court of a State can also issue the writs in defence of Fundamental Rights (Art.226) but can do so for other rights as well-outside

Part III of the Constitution.

Fundamental rights include individual and group rights which are 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 in case of violation of the rights by means of writs such as habeas corpus. Right to life is an example of individual rights while affirmative action in favour of certain castes, women and minorities are example of group rights.

Ques. 3 : Trace the evolution of the Fundamental Rights in India?

Ans. In 1928, a series of All Party conferences headed by Motilal Nehru drafted a constitutional scheme, called the Nehru Report. This constitution called for a parliamentary democratic system of government and protection of minorities. In 1931, the Indian National Congress, at

its Karachi session further committed itself to individual rights and liberties which included social and economic rights in favour of the lower castes and for a living wage for the workers

Fundamental Rights were incorporated into the. Indian Constitution with the inspiration ‘of the leadership of the freedom struggle and the experience of the world’s leading democracies — UK, USA and France that had detailed provisions for the recognition and protection of individual rights in their Constitutions: Bill of Rights of UK, Bill of Rights of USA and Declaration of Rights of Man of France.

Fundamental Rights essentially safeguard individuals from any arbitrary State actions, but some rights are enforceable against private persons as well. For example, abolition of untouchability (Art.17) is a limitation on State action as also on individual actions.

Art. 15, 16, 19, 29 and 30 are available only to citizens & not to foreigners while others are enjoyable by non-citizens (except enemy aliens) as well.

Fundamental Rights can be amended by the Parliament only and no other Government organ - federal or state government.

The Supreme Court upheld the power of the Parliament to amend the Fundamental Rights from the commencement of the Constitution till the Golak Nath case verdict in 1967. But in the Golak Nath case ruling, it held that Parliament could not amend the Fundamental Rights as these rights enjoy a ‘transcendental’ status under the Indian Constitution. But in the Keshvananda Bharati case (1973) verdict, it permitted ‘limited power to the Parliament’ to amend the Fundamental Rights.

In the Kesavananda Bharati vs. State of Kerala case, the Supreme Court laid down the concept of “basic features” of the Constitution. The apex court ruled that basic features cannot be amended by the Parliament. What is meant is that the basic features cannot be restricted or violated but there is scope of enrichment and amplification. However, the legality of such amendment is open to judicial questioning by the Supreme Court. Fundamental Rights are not classified as a basic feature but if they are violated and there is no clear public purpose served by the violation, the violative law can be partially or wholly struck down by the Apex Court. The “Doctrine of Basic Structure” that was introduced in the Kesavananda Bharati vs State of Kerala (1973) was further reinforced in the Menaka Gandhi vs Union of India case (1978) and Waman Rao case in 1981 to the effect that it carries greater force than parliamentary legislation. That is, if Parliament amends the Fundamental Rights, it is invalid if it goes against the basic features of the Constitution as interpreted by the Supreme Court. It shows the enormous importance attached to Fundamental Rights in the Indian Constitution as interpreted by the Apex Court.

Another feature of the Indian Constitution is that it preserves Fundamental Rights against abuse by the government. Only a Constitution Amendment Act, if at all, can amend Fundamental Rights. Neither the federal nor the State Governments can amend the Fundamental Rights to restrict them. Under National Emergency (Art. 352,358 and 359) however, Constitution permits Suspension of the operation of all Fundamental Rights except Art. 20 and 21.

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