Fundamental Rights

Fundamental Rights are mentioned under Part III of the Indian Constitution. Part III of the Constitution is rightly described as the ‘Magna Carta of India’. The Fundamental Rights are meant for promoting the ideal of political democracy. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.

It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. These rights are the most indispensable assets of an individual to achieve his fullest physical, intellectual, and spiritual stretcher. They are also fundamental because the State cannot take away these rights and any law which infringes upon them will be declared null and void. It is preventive of the state from becoming arbitrary or authoritarian, they are fundamental for having the civilized society in place.

Natural rights

They are rights that are “natural” in the sense of “not artificial, not man-made”, as in rights deriving from human nature or from the edicts of a god. They are universal; that is, they apply to all people and do not derive from the laws of any specific society. They exist necessarily, inhere in every individual, and can’t be taken away.

Legal rights

They are based on a society’s customs, laws, statutes, or actions by legislatures. An example of a legal right is the right to vote of citizens. Citizenship, itself, is often considered as the basis for having legal rights and has been defined as the “right to have rights”. Legal rights are sometimes called civil rights or statutory rights and are culturally and politically relative since they depend on a specific societal context.

Ordinary Rights and Fundamental Rights:

• When a right is enacted in an ordinary law of the land it is a statutory right. And when the Constitution guarantees any right it assumes the status of a constitutional right.
• Ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the Constitution of the country.
• Ordinary rights may be changed by the legislature by the ordinary process of law-making, but a fundamental right may only be changed by amending the Constitution itself.
• Judiciary has the powers and responsibility to protect fundamental rights from violations by actions of the government.

Nature of Fundamental Rights

• Some of the Fundamental Rights are considered as negative obligations on the State (Article 14) with certain exceptions (Article 21A).
• Negative Obligations in the sense that, the State cannot do something that hurts or curtails people’s rights.
• Majority of Rights mentioned in Part III are positive in nature and enjoyed by citizens against the State.
• They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated (Article 32).
• Fundamental Rights are not absolute rights, as there are certain reasonable restrictions that can be imposed upon them.
• They are not absolute but qualified.
• Fundamental Rights can be suspended during an emergency.
• Fundamental Rights of people occupying sensitive positions (Armed Forces, Intelligence Agencies, etc.) can be restricted or even denied by Parliament by law.
• Most of the Right are self-executory i.e., the parliament need not frame laws in order to implement these Rights.
• Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
• They are not sacrosanct or permanent.
• The Parliament can curtail or repeal them without hurting the ‘Basic Structure, by only a constitutional amendment act. Their scope of operation is limited by Article 31A, 31B, and 31C.
• Their application can be restricted while martial law is in force in any area.

Definition of State (Article 12)

Article 12 has defined the term ‘State’ for the purposes of Part III. According to it, the State includes the following:

1. Government and Parliament of India, that is, executive and legislative organs of the Union government.
2. Government and legislature of states, that is, executive and legislative organs of state government.
3. All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
4. All other authorities, that is, statutory or non-statutory authorities like SBI, LIC, ONGC, SAIL, etc.

According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

NOTE: In the case of The National Federation of the Blind, Maharashtra & Anr vs The High Court of Bombay, it held that ‘Courts are included within the definition of “State” only on the administrative side while dealing with employees or while taking decisions in an administrative capacity and not on the judicial side’.

Laws Inconsistent with Fundamental Rights (Article 13)

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. It provides for the “doctrine of judicial review”.
Supreme Court (according to Article 32) and the high courts (according to Article 226) can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:

1. Permanent laws enacted by the Parliament or the state legislatures.
2. Temporary laws like ordinances issued by the president or the state governors.
3. Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation, or notification.
4. Non-legislative sources of law, that is, custom or usage having the force of law.

Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. If Amendments to the Constitution are not covered under the term ‘law’ then the Parliament can amend the Fundamental rights by Amending the Constitution itself.

Amendability of Fundamental Rights

• Shankari Prasad vs Union of India (1951)
  The Supreme Court, in this case, held that the Constitutional Amendment Act is not a law. Thus, Parliament has the power to amend any Fundamental Right by using Constitutional Legislative Power.
• Sajjan Singh vs State of Rajasthan Case (1965)
  It also gave a similar verdict in this case that the Parliament is fully authorized to amend the Fundamental Rights.
• Golaknath vs State of Punjab (1967)
  Supreme Court adjudged that Fundamental Rights had been given transcendental position by the Constitution and even Parliament cannot amend Fundamental Rights.
• 24th Constitutional Amendment Act (1971)
  By the 24th amendment, Parliament amended Article 13 and 368. This clarified that Parliament has the power to amend Fundamental Rights through Constitutional Amendment.
• Kesavananda Bharati vs. State of Kerala (1979)
  Amending power of Parliament was challenged in the Supreme Court in this case. But the Supreme Court of India upheld the validity of the 24th Constitutional Amendment Act.
  Supreme Court held that the amending power of the Parliament is limited and is subject to “Basic Structure” of the Constitution.
  The term “Basic Structure” is not explicitly defined by the Supreme Court.

Originally, the Constitution provided for seven Fundamental Rights:

1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32)

However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So, at present, there are only six Fundamental Rights.

Constitutional Rights only For Citizens

The Constitution confers the following rights and privileges on the citizens of India (and denies the same to aliens):

1. Fundamental Rights
   • Article 15: Right against discrimination on grounds of religion, race, caste, sex, or place of birth.
   • Article 16: Right to equality of opportunity in the matter of public employment.
   • Article 19: Right to freedom of speech and expression, assembly, association, movement, residence, and profession.
   • Article 29 and 30: Cultural and educational rights.
2. Right to vote in elections to the Lok Sabha and state legislative assembly.
3. Right to contest for the membership of the Parliament and the state legislature.
4. Eligibility to hold certain public offices:
   • President of India,
   • Vice-President of India,
   • Judges of the Supreme Court and the high courts,
   • Governor of states,
   • Attorney general of India and
   • Advocate general of states.

Significance of Fundamental Rights

• They constitute the bedrock of the democratic system in the country.
• They provide necessary conditions for the material and moral protection of man and serve as a formidable bulwark of individual liberty.
• They facilitate the establishment of rule of law in the country and protect the interests of minorities and weaker sections of society.
• They strengthen the secular fabric of the Indian State and 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 and facilitate the participation of people in the political and administrative process.

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Subject: Polity

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