Fundamental Rights

Topics Discussed: -

1.     Various Kinds of Rights

2.     Salient Features of Fundamental Rights

3.     Fundamental Rights of Citizens and Foreigner

4.     Amenability of Fundamental Rights

5.     Difference between FRs and DPSPs

1.  Various Kinds of Rights

·        Natural Rights:  These are universal rights which are inherent in every individual being a part of human nature. They are not conferred by law but only recognized 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 retained by an individual on the basis of his/her being a human. They are contained in United National 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 right enshrined in the Constitution. Some enjoy special status as Fundamental Rights and some other 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 India citizen only. They are essential for human development, democracy and social progress.

2.  Salient Features of Fundamental Rights

1. Integral part of the Constitution: Fundamental Rights have been made an integral part of the Constitution and hence cannot be taken away by ordinary legislation. Any law passed by any legislature in the country would be declared null and void if it is derogatory  to the rights guaranteed by the Constitution.

2. Comprehensive and detailed:  The rights enumerated in the Part III of the Constitution are very elaborate. Each Article has been described with its scope and limitations.

3. Lack of social and Economic Rights: The Constitution guarantees only civil rights and freedoms. Rights like Rights to work , Right to Health, and Right to Social Security have not been included in the Fundamental Rights.

4. Rights are qualified: The fundamental rights of the people are not absolute except the right against untouchability. They are qualified with limitations and reasonable restrictions in the collective interest of the society. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down for protecting public health, public order, morality and security of India. Some exceptions are also provided to Fundamental Rights through their non-applicability to members of security and law and order related forces, during martial law and, for certain laws necessary for socio-economic reforms.

5. Enforceability of Rights: Fundamental Rights have been made Justiciable. Justiciable rights means if any of these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for the protection and enforcement of his/her Fundamental Rights. Thus, the Constitution not only grants but also guarantees these rights. There are elaborate instruments to protect these rights, such as Right to Constitutional remedy, Public Interest Litigation, Human Rights Commissions.

6. Fundamental Rights are amendable: Fundamental Rights are not sacrosanct and permanent. Parliament has the power to amend any part of the Constitution including Fundamental Rights. The Fundamental Rights, despite having inviolable nature, can be amended by the Parliament, subject to the ‘basic structure’ of the Constitution. The Parliament has, in practice, exercised this power on several occasions.

7. Provision for the Suspension of Rights: The Constitution provides for suspension of all or any of the Fundamental Rights during an emergency. However, such a suspension automatically ends when the emergency ceases or when the President withdraws it.

8. Constitutional superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principals of State when the President withdraws it.

9. Special Rights for the minorities: The Fundamental Rights guarantee some special rights to the minorities of various kinds. This is apart from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted to them. It abolishes untouchability and makes it a crime. It has also granted special protections to women, children and the weaker sections of society.

10. No natural rights: The chapter on Fundamental Rights is not based on theory of ‘natural rights’. Natural rights are said to belong to man by ‘nature’ and are inalienable from him. It is claimed that man possessed these rights even before the (concept of) State came into existence. Accordingly, natural rights do not owe their existence to their enumeration in the constitution. The Constitution of India does not give any recognition to natural or un-enumerated rights. People of India are guaranteed only those rights which are mentioned in Part III of the Constitution.

11. Right to Property not a Fundamental Rights: Right to property which is a feature of particularly liberal democracies is not guaranteed by the Constitution of India. Actually, the original Constitution as in 1949 granted to the citizens the fundamental right to property. However, because of the hindrances posed by this rights in the way of implementation of some socio-economic reforms, right to property was deleted from the list of Fundamental Rights. It was made a legal right under Article 300A. Thus, now right to property is a legal right and not a Fundamental Right of the people.

3.  Fundamental Rights of Citizens and Foreigner

A.    Fundamental rights available to both citizens and foreigners except enemy aliens

1.     Article 14 – Equality before the law and equal protection of laws.

2.     Article 20 – Protection in respect of conviction for offences.

3.     Article 21 – Protection of life and personal liberty.

4.     Article 21A – Right to elementary education.

5.     Article 22 – Protection against arrest and detention in certain cases.

6.     Article 23 – Prohibition of traffic in human beings and forced labour.

7.     Article 24 – Prohibition of employment of children in factories etc.

8.     Article 25 – Freedom of conscience and free profession, practice and propagation of religion.

9.     Article 26 – Freedom to manage religious affairs.

10.Article 27 – Freedom from payment of taxes for promotion of any religion.

11.Article 28 – Freedom from attending religious instruction or worship in certain educational institutions.

B.    Fundamental Rights Available Only to Citizens of India

1.     Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

2.     Article 16 – Equality of opportunity in matters of public employment.

3.     Article 19 – Protection of six rights related to freedom –
(a) of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.

4.     Article 29 – Protection of language, script and culture of minorities.

5.     Article 30 – Right of minorities to establish and administer educational institutions

4.  Amenability of Fundamental Rights

·        Until the case of Golak Nath, the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Constitution, including the Fundamental Rights and Art. 368 itself.

·        According to this earlier view the Courts could act as the guardian of fundamental rights only so long as they were not amended by the Parliament of India by the required majority of votes. In fact, some of the amendments of the Constitution so far made were effected with a view to superseding judicial pronouncements which had invalidated social or economic legislation on the ground of contravention of fundamental rights.

·        But the Supreme Court cried halt to the process of amending the Fundamental Rights through the amending procedure laid down in Art. 368 of the Constitution, by its much-debated decision in Golak Nath v. State of Punjab.

·        In this case. overruling its two earlier decisions, the Supreme Court held that Fundamental Rights, embodied in Part III, had been given a 'transcendental position' by the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Art. 368, was competent to amend the Fundamental Rights.

·        But by the 24th Amendment Act, 1971, Arts. 13 and 368 were amended to make it clear that Fundamental Rights were amendable under the procedure laid down in Art. 368, thus overriding the majority decision of the Supreme Court in Golak Nath. v. State of Punjab.

·        The majority decision in Kesavananda Bharat case held the validity of these amendments and also overruled Golak Nath's case, holding that it is competent for Parliament to amend Fundamental Rights under Art. 368, which does not make any exception in favour of fundamental rights; nor does Art. 13 comprehend Acts amending the Constitution itself.

·        At the same time Kesavananda's case also laid down that there were implied limitations on the power to 'amend' and that power cannot be used to alter the 'basic features' of the Constitution.

·        A big limitation that stands in the way of Parliament, acting by a special majority, to introduce drastic changes in the Constitution, is the judicially innovated doctrine of 'basic features' which can be eliminated only if a Bench larger than the '13-Judge Bench in Kesavananda's case' be prepared to overturn the decision in that case.

·        In the meantime, applying Kesavananda; the majority of the Constitution Bench has invalidated Clauses. (4) and (5) of Art. 368 as violative of the basic features of the Constitution [Minerva Mills v. Union of India, AIR 1980 S.C. 1789 (paras 21, 28)).

5.  Difference between FRs and DPSPs

6.    Procedure Established vs Due Process