Unit III (Part I):

Fundamental Rights -
Introduction
Concept of Rights
2
 Since the 17th century, if not earlier, human thinking has been veering round to
the theory that man (Human) has certain essential, basic, natural and
inalienable rights or freedoms and it is the function of the state, in order
that human liberty may be preserved, human personality developed, and
an effective social and democratic life promoted, to recognise these rights
and freedoms and allow them a free play.
 The concept of human rights can be traced to the natural law philosophers, such
as, Locke and Rousseau.
 The natural law philosophers philosophized over such inherent human rights and
sought to preserve these rights by propounding the theory of “social compact”.
 According to LOCKE, man is born “with a title to perfect freedom and an
uncontrolled enjoyment of all the rights and privileges of the Law of
Nature” and he has by nature a power “to preserve his property—that is, his
life, liberty, and estate, against the injuries and attempts of other men.”
Theories of Rights - Natural Rights
Theory 3
 The Natural Rights Theory traces back to early modern thinkers like John Locke, Jean-
Jacques Rousseau, and Thomas Jefferson, who believed that rights are inherent in human
beings by virtue of their humanity.

 Locke argued that every individual is born with certain inalienable rights — life, liberty,
and property — which exist independently of government.

 Governments, he argued, are formed through a social contract to protect these natural
rights; if they fail to do so, citizens have the right to revolt.

 Rousseau extended this idea through his vision of popular sovereignty, where rights are
protected through the general will.

 Jefferson famously carried this forward into the American Declaration of Independence
with the phrase “life, liberty, and the pursuit of happiness.”

 Significance: Natural rights theory laid the foundation for Fundamental Rights and the
idea that some rights are so intrinsic that no state can legitimately take them away.
Theories of Rights - Legal/Positivist Theory of
Rights 4
 In contrast, Jeremy Bentham and later John Austin argued from a legal
positivist perspective that rights do not exist naturally but are creations of
law.

 Bentham dismissed natural rights as “nonsense upon stilts,” contending

that rights only have meaning if recognized and enforced by a sovereign
authority.

 Austin reinforced this by defining rights as those legally protected interests

which are conferred by the command of the sovereign.

 Significance: This view highlights the importance of legal enforceability. A

right is only meaningful if the legal system recognizes it and provides
remedies when it is violated — a view that resonates strongly in modern
constitutional law where rights are tied to enforceability under Article 32 or
Article 226 in India.
Theories of Rights - Utilitarian Theory of
Rights 5
 John Stuart Mill, building on Bentham, adopted a more nuanced
utilitarian approach.
 For Mill, rights are those claims which society ought to protect
because they are essential to human happiness and the greater good.
 Freedom of speech, for example, is valuable not only for the
individual but for society as a whole, since it promotes truth,
progress, and moral development. Thus, rights are justified insofar as
they maximize utility.

 Significance: Mill’s reasoning strongly influenced liberal

democracies, especially the defense of civil liberties such as freedom
of speech, press, and assembly. In India, this resonates in debates
about the scope of Article 19 and the permissible restrictions under
Article 19(2).
Theories of Rights - Marxist/Socialist Theory
of Rights 6
 Karl Marx critiqued the liberal conception of rights as serving
bourgeois interests, arguing that individual rights like property and
contract perpetuate inequality and alienation.
 In Marx’s view, real freedom could only be achieved by
restructuring society to abolish class distinctions and ensure
collective welfare.
 Later socialist thinkers built on this, emphasizing social and
economic rights — the right to work, education, health, and housing
— as prerequisites for true liberty.
 Significance: Marxist thought influenced the inclusion of Directive
Principles of State Policy in the Indian Constitution and continues to
inform global human rights discourses around welfare entitlements.
Theories of Rights - Historical/Institutional Theory of
Rights 7
 The Historical School, led by thinkers like Edmund Burke and
Friedrich Savigny, argued that rights are not universal abstractions
but products of the historical traditions and customs of a society.
 Burke, for instance, criticized the French Revolution’s “abstract
rights of man,” emphasizing instead the importance of rights
grounded in historical continuity and institutional development.
 Significance: This theory reminds us that rights must be
contextual and culturally rooted.
 For India, it explains the blend of universal human rights ideals with
uniquely Indian adaptations, such as group rights, affirmative
action, and recognition of community-based practices.
Theories of Rights - Social Welfare / Sociological Theory
of Rights 8
 Modern sociological thinkers such as Roscoe Pound stressed
that rights should be understood as social interests
recognized and protected by law to maintain harmony.
 Rights are not absolute but relative, needing to be balanced
against competing claims.
 For example, the right to free speech may be restricted to
protect public order or prevent defamation.
 Significance: This theory aligns closely with the Indian
constitutional model, where Fundamental Rights (Part III)
coexist with reasonable restrictions and the Directive
Principles (Part IV), requiring courts to balance individual
liberty with social welfare.
Theories of Rights - Contemporary Human Rights
Theory
 Post-World War II developments, especially the Universal
Declaration of Human Rights (1948), ushered in a new phase of
rights theory that integrates civil-political liberties with socio-
economic entitlements.
 Thinkers such as Amartya Sen and Martha Nussbaum advanced the
Capabilities Approach, emphasizing that rights are not merely legal
entitlements but practical freedoms — the ability to actually
achieve well-being and live with dignity.
 Significance: This modern perspective influenced constitutional
courts worldwide, including India’s, to expand the scope of rights
(e.g., Article 21 jurisprudence on the right to life including health,
education, environment, and livelihood).
 Concluding Rights discussion:
 The evolution of rights theories shows a movement from individual
liberty (natural rights, liberalism) → to legal enforceability (positivism) →
to social justice (Marxism, sociological school) → to holistic human
dignity (human rights and capabilities approach).
 Each theory adds a layer to our understanding: rights as inherent,
conferred by law, serving social welfare, or essential for human
flourishing.
 The Indian Constitution reflects this synthesis, blending liberal rights
(Part III) with socialist ideals (Part IV) and judicial expansion (Article 21),
making it a living document in tune with evolving theories of rights.
The Origin and Development of Rights: Magna Carta (1215,
England)
 The Magna Carta, signed in 1215 between King John of England and his
feudal barons (powerful landowner/noble), is often regarded as the
earliest constitutional document asserting the principle that rulers are
not above the law.
 While originally a feudal compact designed to protect the privileges of
barons, over time it came to symbolize a broader struggle for liberty.
 The Magna Carta introduced foundational ideas such as the principle
of habeas corpus (no arbitrary detention), the right to a fair trial
by peers, and the notion that taxation could not be imposed without
representation.
 Its enduring legacy lies in embedding the concept of the rule of law,
inspiring later constitutional frameworks in England and beyond.
English Bill of Rights (1689, England)
 Following the Glorious Revolution of 1688, the English Bill of Rights
was enacted in 1689, formally establishing the supremacy of
Parliament over the monarchy.
 It laid down critical liberties such as the freedom of speech within
Parliament, the right to petition the monarch, and protection
against cruel and unusual punishment.
 It also declared that no taxes could be imposed without
parliamentary approval, reinforcing representative governance.
 While limited in its application to the political elite, it was significant
for establishing the notion of a constitutional monarchy and
contributed to the development of modern democratic traditions.
American Declaration of Independence (1776) and Bill of Rights
(1791, U.S.)
 The American Revolution gave rise to a bold articulation of natural
rights in the Declaration of Independence (1776), which proclaimed
that “all men are created equal” and endowed with unalienable
rights such as life, liberty, and the pursuit of happiness.
 This philosophical foundation was soon given legal expression
through the U.S. Bill of Rights (1791), which enshrined the first ten
amendments to the U.S. Constitution.
 These amendments guaranteed rights such as freedom of speech,
press, and religion, the right to bear arms, due process of law, and
protection against arbitrary searches or punishments.
 For the first time, rights were not just aspirational but made
justiciable and enforceable by courts, establishing a precedent for
judicially enforceable fundamental rights in modern constitutions.
 French Revolution and the Declaration of the
Rights of Man and Citizen (1789, France)
 Emerging out of the Enlightenment and revolutionary ferment, the Declaration of
the Rights of Man and of the Citizen (1789) sought to dismantle feudal privileges
and assert universal ideals of liberty, equality, and fraternity.
 It declared that all men are born free and equal in rights, which included liberty,
property, security, and resistance to oppression.
 The Declaration also placed sovereignty in the hands of the nation rather than
the monarch, signalling a dramatic shift in political authority.
 Unlike the American model, the French approach emphasized collective equality
and fraternity, influencing subsequent struggles for social and political rights
across the globe.
 Its legacy continues to resonate in the principles of egalitarianism and popular
sovereignty embedded in many modern constitutions.
 Russian Revolution and Socialist Rights (1917
onwards)
 The Russian Revolution of 1917 introduced a fundamentally new dimension to
the rights discourse: social and economic rights.

 The Soviet Constitution of 1918 guaranteed entitlements such as the right to

work, the right to rest and leisure, the right to education, and the right to
social security.

 This expanded the scope of rights beyond classical civil and political liberties,
stressing the importance of addressing material inequalities and collective
welfare.

 By embedding social and economic entitlements within constitutional

frameworks, the Russian model highlighted that liberty without social justice
remained hollow.

 This thinking profoundly influenced later constitutions, including the Directive

 Universal Declaration of Human Rights (UDHR,
1948)
 In the aftermath of World War II and the atrocities of the Holocaust, the global
community sought to establish a universal framework for human dignity.
 The Universal Declaration of Human Rights (1948), adopted by the United
Nations, articulated a comprehensive catalogue of rights applicable to all people
everywhere.
 It combined civil and political rights (such as equality before law, freedom of
speech, assembly, and religion) with economic, social, and cultural rights (such
as the right to work, education, health, and an adequate standard of living).
 While not legally binding, the UDHR set a moral and political standard of universal
rights, influencing subsequent international covenants as well as national
constitutions, including India’s.
 The Indian Constitution reflects this dual legacy, with Fundamental Rights in Part
III echoing civil-political rights, and Directive Principles in Part IV drawing
inspiration from socio-economic guarantees.
Conclusion: The Evolutionary Arc of Rights
17
 From the Magna Carta’s limitation of royal power to the
UDHR’s universal human rights, the journey of rights
demonstrates an ever-expanding vision of human dignity.
 Initially concerned with liberty against authority (civil
rights), the idea evolved to include equality (political
rights), and finally, socio-economic justice (welfare rights).
 This global historical arc directly shaped the Indian
framers’ vision: to create a Constitution that enshrined
enforceable Fundamental Rights alongside aspirational
Directive Principles, thereby blending the liberal and
socialist traditions into a uniquely Indian model.
Theories of Rights – Entry to the Indian Constitution
18
Thinker / Core Idea of Rights Indian Constitutional
Theory Reflection
John Locke Rights are inalienable (life, Fundamental Rights (Part III) –
(Natural Rights) liberty, property); state exists especially Articles 14, 19, 21
to protect them; people may (life, liberty, equality).
revolt if denied.
Jean-Jacques Rights safeguarded by the Preamble – “We, the People of
Rousseau general will; sovereignty lies India”; democratic republican
(Social with the people. structure.
Contract)
Jeremy Rights are creations of law; no Articles 32 & 226 – rights
Bentham (Legal natural rights, only legally meaningful only when
Positivism) enforceable ones. enforceable by courts.
J.S. Mill Rights must maximize utility; Article 19(1)(a) – Freedom of
(Utilitarian free speech protects truth and speech with reasonable
Liberalism) societal progress. restrictions in Article 19(2).
Karl Marx Liberal rights serve elites; real Directive Principles (Part IV) –
(Marxist/Socialis freedom requires socio- right to work, education,
Theories of Rights – Entry to the Indian Constitution
19
Thinker / Theory Core Idea of Rights Indian Constitutional
Reflection
Edmund Burke / Rights are rooted in history, Special provisions (Articles
Savigny (Historical tradition, and institutions, 371, cultural & educational
School) not abstract ideals. rights for minorities).
Roscoe Pound Rights are social interests; Restrictions on rights (Art.
(Sociological law must balance 19(2)–(6)); balancing rights
Theory) competing claims for with public interest.
harmony.
Amartya Sen & Rights = real capabilities to Expansive Art. 21
Martha Nussbaum live with dignity; beyond jurisprudence (right to health,
(Capabilities formal guarantees. education, environment,
Approach) livelihood).
Universal Rights are universal: civil- Blend of Fundamental Rights
Declaration of political + socio-economic. (Part III) + Directive Principles
Human Rights (Part IV).
(1948)
Fundamental Rights in India 20
Coming to India, a few good reasons made the enunciation of the
Fundamental Rights in the Constitution rather inevitable.
For one thing, the main political party, the Congress, had for long
been demanding these Rights against the British rule.
During the British rule in India, human rights were violated by the
rulers on a very wide scale.
Therefore, the framers of the Constitution, many of whom had
suffered long incarceration during the British regime, had a very
positive attitude towards these rights.
Secondly, the Indian society is fragmented into many religious,
cultural and linguistic groups, and it was necessary to declare
Fundamental Rights to give to the people a sense of security and
confidence.
Fundamental Rights in India
21
 It was thought necessary that people should have some Rights which may
be enforced against the government which may become arbitary at times.

 Though democracy was being introduced in India, yet democratic traditions

were lacking, and there was a danger that the majority in the legislature
may enact laws which may be oppressive to individuals or minority groups,
and such a danger could be minimised by having a Bill of Rights in the
Constitution.

 The need to have the Fundamental Rights was so very well accepted on all
hands that in the Constituent Assembly, the point was not even considered
whether or not to incorporate such Rights in the Constitution.

 In fact, the fight all along was against the restrictions being imposed on
them and the effort all along was to have the Fundamental Rights on as
broad and pervasive a basis as possible.
Fundamental Rights in India
22
 The Fundamental Rights are a necessary consequence of the
declaration in the Preamble to the Constitution that the people of India
have solemnly resolved to constitute India into a sovereign democratic
republic and to secure to all its citizens justice, social, economic, and
political; liberty of thought, expression, belief, faith and worship;
equality of status and opportunity.
 Part III of the Constitution protects substantive as well as procedural
rights.

 The Fundamental Rights in India, apart from guaranteeing certain basic

civil Rights and freedoms to all, also fulfil the important function of
giving a few safeguards to minorities, outlawing discrimination and
protecting religious freedom and cultural rights.
Fundamental Rights in India
23
 The Indian Constitution guarantees essential human rights in the
form of Fundamental Rights under Part III and also directive
principles of State policy in Part IV which are fundamental in the
governance of the country.
 The object has been to place citizens at a centre stage and make
the State accountable.
 The Indian Constitution, adopts a different approach in so far as
some Rights are worded generally; in respect of some Fundamental
Rights, the exceptions and qualifications have been formulated and
expressed in a compendious form in the Constitution itself, while in
respect of some other Rights, the Constitution confers power on the
Legislature to impose limitations.
 Articles 12 to 35 of the Constitution pertain to Fundamental Rights
of the people.
Fundamental Rights in India
24
 The Fundamental Rights in the Indian Constitution have been grouped
under six heads as follows:
 (i) Right to Equality comprising Articles 14 to 18, of which Article 14 is
the most important.
 (ii) Right to Freedom comprising Articles 19 to 22 which guarantee
several freedoms, the most important of which is the freedom of
speech.
 (iii) Right against Exploitation consists of Articles 23 and 24.

 (iv) Right to Freedom of Religion is guaranteed by Articles 25 to 28.

 (v) Cultural and Educational Rights are guaranteed by Articles 29 and

30.
 (vi) Right to Constitutional Remedies is secured by Articles 32.
thank you