Lecture 10: Fundamental Rights

Fundamental Rights
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RIGHTS
• Right denotes what we are entitled to as citizens, as individuals and as human beings. Rights are
primarily those claims that I along with others regard to be necessary for leading a life of respect and
dignity. In fact, one of the grounds on which rights have been claimed is that they represent conditions
that we collectively see as a source of self-respect and dignity.
Natural Rights
• They are the basic set of rights which people inherit from the nature.
• In simple words, Natural rights are: “Rights which persons possess by nature that is without the
intervention of the agreement, or in the absence of political and legal institution.”
• Political theories mentions that an individual enters into society with certain basic rights and that no
Government can deny these rights.
• The modern idea of natural rights grew out of the ancient and medieval doctrines of natural law.
• Right to equality is one important Natural right.
Moral Rights
• Moral Rights based on human sense of goodness and justice. They are guided by human
consciousness.
• Moral Rights include rules of good conduct, courtesy and of moral behaviour.
• Moral rights not enforced by the force of law.
Human Rights
• Any human being as a part of humanity is entitled to have certain rights and the state must take
necessary steps for their protection.
• According to Heywood: “Human rights are rights to which people are entitled by virtue of being human.
They are, therefore, universal rights in the sense that they belong to all human beings rather than to
members of any particular nation, race, religion, gender, social class or whatever.”
• They specify the minimum conditions for human dignity and a tolerable life.
• Human rights are also fundamental in that they are inalienable, they cannot be taken away.
• Human Rights are evolved out of self-respect. Rights such as life, liberty and freedom from torture are
categorised as human rights.
Constitutional Rights
• All rights that have been conferred to the citizens and enshrined in the Constitution of a country are
said to be Constitutional Rights.
• In Indian Constitution, these rights include fundamental rights under Part III as well as other rights
mentioned outside Part III.
• So, in India, all fundamental rights are Constitutional rights but not vice versa.
• For example, right to vote or universal adult suffrage is Constitutional right guaranteed in our
Constitution under Article 326.
Legal Rights
• Legal rights are those rights which are accepted and enforced by the state.
• Violation of any legal right is punished by law.
• Law courts of the state enforce legal rights.
These rights can be enforced against individuals and also against the Government. It includes:

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• Civil rights, which provide opportunity to each person to lead a civilized social life. The different types
of civil rights guarantee equal opportunities, legal protections, and the ability to participate in society
without persecution.
• Political rights, by virtue of which inhabitants get a share in the political process.
• Economic rights, which provide economic security to the people.

RIGHTS UNDER INDIAN CONSTITUTION

Rights of an individual in Indian Constitution are divided into categories:
1. Fundamental Rights, which are justiciable in nature, are incorporated in Part III of Indian
Constitution.
2. Directive Principles, which are non-justiciable, are mentioned in separate Part IV.
3. Other Constitutional Rights
▪ The fundamental rights and directive principles follows the preambular assurance of justice, equality,
liberty, and fraternity.

FUNDAMENTAL RIGHTS – PART III (ARTICLE 12-35)

• The fundamental rights represent the basic values cherished by the people of India and they are given
to people of India to protect the dignity of the individual and create conditions in which every human
being can develop his personality to be full extent.
• The fundamental rights impose a negative obligation on the state not to encroach an individual liberty
in its various dimensions. The reason behind the inclusion of this chapter on fundamental rights in the
constitution is to establish “a government of law” and “not of man”, i.e, the government system cannot
encroach citizen basic rights and liberties.
• Fundamental rights are essential for overall development of citizens and healthy functioning of
democracy.
• They are called fundamental because they are the most basic requirement for an individual to attain his
full physical, spiritual and intellectual status.
• Part III of the constitution is called as the cornerstone of Indian Democracy, that means it is the most
important and essential part of constitution without this democracy can’t survive.
Source
• They are inspired from the Bill of Rights of the American Constitution.
• Also, in India, the leaders of the freedom movement had realised the importance of rights and
demanded that the British rulers should respect rights of the people.
• The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.

Utility of Fundamental Rights:

• Fundamental Rights are meant for promoting the ideal of political democracy.
• They uphold the equality of all individuals, the dignity of the individual, the larger public interest and
unity of the nation.
• They prevent the establishment of an authoritarian and despotic rule in the country.
• They represent the values and aspirations that should guide all the citizens of India.

Features of the fundamental rights:

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• Fundamental rights are enjoyed by citizens and enforced against the state (legislature and executive).
• They are not absolute i.e. they are provided with certain limitations and reasonable restrictions.
• Fundamental Rights can be categorized in to two types: positive and negative. Negative rights are
those, which limit state action and prohibit the state from doing certain things-e.g. Art. 14, which
states, “The state shall not deny to any person equality before the law or equal protection of laws
within the territory of India.” Positive rights, on the other hand, are those rights that permit a citizen to
enjoy certain freedoms-e.g., Art. 19, which gives the right to freedom.
• Some Fundamental Rights are self-executory e.g. Article 14 and some are executory in nature i.e. they
have to be brought under execution by parliament e.g. Article 17.
• Rights are amendable, but this amendment has to be according to the procedure established by the
Constitution itself.
• Fundamental rights are justiciable in nature: If any of these rights is violated, the individual affected is
entitled to move the Supreme Court or High Court for the protection and enforcement of her/his
rights.
• Suspension of Rights: The rights can be suspended during the operation of a National Emergency
except the rights guaranteed by Articles 20 and 21.
• Wide set of Beneficiaries: Some of the fundamental rights in our Constitution are available only to the
citizens. While others are available to all persons whether citizens, foreigners or legal persons like
corporations or companies.
Available to citizens only Available to citizens and foreigners
Prohibition of discrimination on various Equality before law and equal protection of laws
grounds (Article 14)
(Article 15)
Equality of opportunity in matters of Protection in respect of conviction for offences
public employment (Article 20)
(Article 16)
Protection of six rights regarding freedom Protection of life and personal liberty
of : (Article 21)
Speech and expression, Right to elementary education
Assembly, (Article 21A)
Association, Protection against arrest and detention in certain
Movement, cases
Residence, and (Article 22)
Profession
(Article 19)
Protection of language, script, and Right against exploitation
culture of minorities (Articles 23–24)
(Article 29)

Right of minorities to establish and Right to freedom of religion

administer educational institutions (Article 25– 28)
(Article 30)

C RITICISM O F F UNDAMENTAL R IGHTS :

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• These rights are subjected to innumerable exceptions and restrictions. Critics remarked that the
Constitution grants fundamental rights with one hand and takes them away with the other.
• They mainly consist of political rights, not social and economic ones.
• Many words like ‘public order’, ‘minorities’, ‘public interest’ and so on are not clearly defined.
• Fundamental rights are not sacrosanct or immutable. Parliament can curtail or abolish them.
• It is alleged that the Constitution was made by the lawyers for the lawyers.
• These rights can be suspended during National Emergency.
• The critics assert that the provision for preventive detention takes away the spirit and substance of the
chapter on fundamental rights.

S IGNIFICANCE :

• They constitute the bedrock of democratic system in the country.

• They provide necessary conditions for the material and moral protection of man.
• They serve as a formidable bulwark of individual liberty.
• They facilitate the establishment of rule of law in the country.
• They protect the interests of minorities and weaker sections of society.
• They strengthen the secular fabric of the Indian State.
• They check the absoluteness of the authority of the government.
• They lay down the foundation stone of social equality and social justice.
• They ensure the dignity and respect of individuals.
• They facilitate the participation of people in the political and administrative process

List of Fundamental Rights

There are six fundamental rights of Indian Constitution along with the constitutional articles related to
them are mentioned below:
• Right to Equality (Article 14-18)
• Right to Freedom (Article 19-22)
• Right against Exploitation (Article 23-24)
• Right to Freedom of Religion (Article 25-28)
• Cultural and Educational Rights (Article 29-30)
• Right to Constitutional Remedies (Article 32)

A RTICLE 12: D EFINITION OF S TATE

• The term “state” is defined under Article 12 of Indian Constitution.
• State: Parliament, State Legislature, Union and state executive, All local or other authorities within
territory of India or under the control of Government of India.
• Local authorities are under the exclusive control of the states. Local authority has: (i) separate legal
existence; ii) Function in a defined area; iii) have power to raise funds ; iv) Enjoy autonomy.
• Other authorities: It may be statutory body, government company or any other body which have some
nexus with the government.
• The definition of state under “Article 12” of the Constitution does not explicitly mention the judiciary.

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• Even a ‘private body’ may be “state” if it is entrusted with some public service responsibility by the
government.

It is the actions of all above mentioned agencies that can be challenged in the courts for violating the
Fundamental Rights.

A RTICLE 13: L AWS INCONSISTENT WITH OR IN DEROGATION OF THE F UNDAMENTAL RIGHTS

• Article 13 declares that all laws that are inconsistent with or in derogation of the fundamental rights
shall be void.
• The power has been conferred on the Supreme Court and the high Courts to declare a law
unconstitutional and void if it is inconsistent with any of the fundamental rights.
• It provides for the doctrine of ‘Judicial review’ and the definition of ‘law’.
• The fundamental rights are paramount and article 13 which has in itself the doctrine of severability and
the doctrine of eclipse protect the dormancy of the fundamental rights.
• Doctrine of Severability: The doctrine of severability means that when some particular provision of a
statute offends or is against a constitutional limitation, but that provision is severable from the rest of
the statute, only that offending provision will be declared void by the Court and not the entire statute.
• Doctrine of Eclipse: The doctrine states that if any law becomes contradictory to the fundamental
rights, then it does not permanently die but becomes inactive. As soon as that fundamental right is
omitted from the Constitution, the inactive law becomes revived.

Article 13 in details:

• Article 13(1): Any pre-constitutional law which violate or abridges FR’s will be considered
unconstitutional or void to the extent it violates FR’s.
• Article 13(2): Any post-constitutional law which violates or abridges FR’s will be considered
unconstitutional or void to the extent it violates FR’s.
• According to Bikaji Narayan Case 1955, SC applied doctrine of eclipse and said that such pre-
constitutional law shall remain dormant but not dead i.e. it goes under the shadow of new law and can
be revived again.
• In Deep Chand Case 1959, SC held that doctrine of eclipse can only be applied to pre-constitutional
laws.
• However, SC in Ambika Mill Case 1974, held that doctrine of eclipse can be applied both to pre and
post-constitutional laws.

Amendability of FR’s:

Through 1st Constitutional Amendment Act, 1951, Indian parliament had introduced few changes in Part III
of Indian Constitution. This amendment act was challenged in SC on grounds of violation of Article 13(2).
In Shankari Prasad Case 1951, the court held that the parliament enjoys two types of powers:

• Ordinary legislative power.

• Constitutional amendment power.

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Any enactment made by parliament using legislative power is called a law and is covered the scope of
Article 13(2). However, if the parliament uses its constitutional legislative power i.e., to amend the
constitution then it will be called as Constitutional Amendment Act, but not a law as per the definition of
law under Article 13. So, Parliament can change anything through Constitutional amendment act and it
should not be considered as violation of Article 13 of Indian Constitution.
In Golaknath Case 1967, SC overruled its earlier decision and held that Article 368 includes only the
procedure to amend the constitution and did not confer any power to parliament i.e., SC ruled that
parliament enjoys only one kind of power i.e. ordinary legislative power.
Parliament responded by enacting 24th Constitutional Amendment Act, 1971 in which it was added that
nothing in Article 13 shall apply to amendment made under 368 and also introduced 13(4) which states
that nothing in this Article shall apply to any amendment act made under 368.
24th CAA 1971 was challenged in SC in Keshvananda Bharti Case (1973) and SC held that 24th CAA is valid
and parliament enjoys constitutional amendment power along with ordinary legislative power but any such
amendment is limited to the extent that parliament does not destroy the basic structure of the
constitution.
Parliament enacted 42nd CAA 1976, which took away the power of judicial review in the case of
Constitutional Amendment acts.
SC in Minerva Mill Case 1980 held that judicial review in the part of the basic structure of the constitution
and this provision of the 42nd CAA was declared unconstitutional.

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