UNIT I
FUNDAMENTAL RIGHTS
INTRODUCTION
Man has certain inalienable rights
● Since the 17th century, if not earlier thinking developed that man has certain essential,
basic, natural and inalienable rights or freedoms
● It is the function of the state to recognize these rights and freedoms and allow them a free
play of these freedoms
Role of natural law philosophers
● The natural law philosophers ( Locke and Rousseau) philosophised over such inherent
human rights and sought to preserve these rights by propounding the theory of “ social
contract”
● 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."
● This concept also finds its origins in the social contract theory as propounded by Locke,
Rosseau and Hobbes. Hobbes said: “People have, in a kind of social contract with the
state, parted away with heir Rights and have vested them in the state. The state, in turn,
undertakes to protect these rights”.
● Locke and Rosseau went a step further and qualified this theory of Hobbes by adding that
the people have retained some of their rights – the rights which are inalienable – unto
themselves despite the social contract: these rights are what later on came to be called the
Fundamental Rights.
Declaration of the French Revolution, 1789
• May be regarded as a concrete political statement on Human Rights and
• which was inspired by the LOCKEAN philosophy declared :
• "The aim of all political association is the conservation of the natural and inalienable rights of
man".
RIGHTS GUARANTEED TO CITIZENS
HUMAN RIGHTS
● Protects individuals against the excesses of the state
● It represents an attempt to protect the individual from oppression and injustice
● Right to liberty is the very essence of a free society and it must be safeguarded at all
times
● A person should have a minimum guaranteed freedom
FUNDAMENTAL RIGHTS
● Entrenching certain basic and fundamental rights will take them out of the reach of
transient political majorities
● It is regarded as essential that these rights be entrenched in such a way that they may not
be violated by an oppressive government
● Some written Constitutions guarantee a few rights to the people and forbid governmental
organs from interfering with the same
● Such guaranteed rights can be taken away only by elaborate and formal process of
constitutional amendment
● But as no right is absolute, the courts have, in course of time, spelled out some
restrictions and limitations on these Rights, which in respect of Fundamental Rights 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.
DUAL ASPECT OF FUNDAMENTAL RIGHTS
1. They confer justiciable rights on the people which can be enforced through the courts against
the government
2. Constitutes restrictions and limitations on government action Government can not take any
action, administrative or legislative, by which a fundamental right is infringed.
FUNDAMENTAL RIGHTS v. OTHER RIGHTS
The Constitution has several other provisions as to the rights of the citizens. But these need not
be a guarantee, e.g. The Prime Minister is to be appointed by the President according to a
particular procedure. But if the provisions have been violated an individual may not have the
same remedy as in the case of a Fundamental Rights, the reason being that certain issues can be
solved by political process. In this case a no trust move can be initiated or the other Prime
Minister appointed may fail to prove his majority on the floor of the house.
On the other hand, if a Fundamental Rights such as right to worship is violated, one is bound to
lose (particularly if he belongs to the minority) if he undertakes the remedy of political process.
Such a situation is ensured against the guarantee of Fundamental Rights. By way of joining the
state as its member an individual has reserved the right to worship to himself. He can approach
the Courts which are bound to grant an appropriate remedy. And if the state refuses to comply, it
would amount to a contempt of Court which in turn also has its remedy. If the State still fails to
abide by it, it would amount to a failure of constitutional machinery (dictatorship). In such a
case, the Government becomes one based not on the Constitution but on force.
DECLARATION OF FUNDAMENTAL RIGHTS
➢ UDHR-UNIVERSAL DECLARATION OF HUMAN RIGHTS
● In modern times, the concept of the people’s basic rights has been given a more concrete
and universal texture by the Charter of Human Rights enacted by the United Nations
Organization (U.N.O.) (UDHR 10.12.1948),
● The Preamble to the Universal Declaration of Human Rights inter alia declares:
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world"
➢ ECHR
● The European Convention on Human Rights (04.11.1950), better known asThe
Convention for the Protection of Human Rights and Fundamental Freedoms
● It was the first instrument to give effect to certain of the rights stated in the Universal
Declaration of Human Rights and make them binding.
➢ BRITAIN
● No formal declaration of people’s [Link] there in Britain
● Doctrine of Parliamentary sovereignty is a principle of the UK constitution which does
not envisage a legal check on the power of Parliament.
● Parliament, theoretically, is free to make any law even though it abridges, modifies or
abolishes any basic civic right and liberty of the people, under this doctrine.
● Generally, the courts cannot overrule its legislation and power of executive is limited,
subjected to rule of law.
● Rule of Law
➔ Concept of rule of law prevails in Britain.
➔ In England, Rule of law began sometime around 1215 when King John of
England signed the Magna Carta of 1215. The signing of Magna Carta indicated
the consent of the Monarchy of England to be under the law and the law to be
supreme.
➔ The doctrine of rule of law in England took a new look after the conflict between
the parliament and monarchy arose. In this conflict the parliament and the
monarchy were struggling to be supreme authority. This conflict was resolved in
favour of the parliament.
➔ After parliament became supreme over the monarchy it started making the laws
which controlled and limited power of the monarchy. Hence executive organs in
England became subjected to the law of the parliament and that was the beginning
of the rule of law in England.
➔ Executive is answerable to the courts for any action which is contrary to the law
of the land.
➔ Rule of law constitutes no legal restraints on the legislative power of Parliament
and thus, cannot be equated to the concept of Fundamental rights
● Until 1998
➔ The protection of individual freedom in Britain till 1998 rested not on any
constitutional guarantees but on
★ public opinion
★ Good sense of the people
★ Strong common law traditions favoring individual liberty and
★ The Parliamentary form of government
➔ Britain has accepted the European Charter on Human Rights but this was not
good enough because the Charter did not bind Parliament
➔ It could be used only to interpret the local law.
➔ Law made by Parliament was in essence law made by the House of commons,
meant that a government having support of a majority in the House, could often
force through whatever legislation it desired.
➔ Hence, a Bill of Rights was needed to curb Parliamentary legislative power and
provide the citizens with Fundamental rights and protect the same.
● Human Rights Act, 1998
➔ The Human Rights Act 1998 set out the fundamental rights and freedoms that
everyone in the UK is entitled to.
➔ It incorporated the rights set out in the European Convention on Human Rights
(ECHR) into domestic British law.
➔ The Human Rights Act came into force in the UK in October 2000.
➔ The British parliament enacted this Act:
★ To give effect to the rights and freedoms guaranteed under the European
Convention on Human Rights
➔ The Act is a significant constitutional innovation as now all legislations are to be
read and given effect to in a way which is compatible with convention rights
➔ S. 2(1) (a) requires a Court determining a question regarding convention right, to
take into account any "judgement, decision, declaration or an advisory opinion of
the European Court of Human Rights, so far as the same is relevant to the
proceedings in question."
➔ Under s. 4(1), the Court may make a declaration that a legal provision is
incompatible with a convention right.
➔ In such a case, under s. 10(1)(b), the Minister may by order make such
amendments to the legislation as he considers necessary to remove the
incompatibility. But a draft of the order has to be approved by both Houses of
Parliament.
BRITISH v. INDIAN POSITION
The British Act falls short of a declaration of Fundamental Rights in the Constitution
(such as is the case in India) in several respects; viz.:
1. In India, if a law is incompatible with a Fundamental Right, the law is void. Not so
in Britain.
2. The Human Rights Act does not provide the courts with the power to strike down
legislation which is inconsistent with the Convention rights. The incompatibility may be
removed by the Minister with the approval of Parliament. If the Minister does not seek to remove
the incompatibility, the law in question continues to exist. Not so in India where a void law is
regarded as non-est.
3. The British Act is only an Act passed by Parliament. Parliament can repeal or amend the same
by passing another Act . The Act is not entrenched against repeal but can be repealed in the
ordinary way. On the other hand, to make any change in the Fundamental Rights in India, the
Constitution needs to be amended which is a much more arduous and elaborate
procedure than passing or amending an ordinary law.
AUSTRALIA
● An outstanding example of the need for a bill of rights is Australia.
● The Australian Constitution, following the traditions of Britain, does not have a Bill of
Rights but guarantees only a few rights, e.g., freedom of religion.
● In a federal country, the problem becomes more complicated as there may be attacks on
individual liberty and freedom not only at the Central level, but even at the state level.
● "The unique English situation is not simply exportable, and other nations have generally
felt that their governments need the constant reminder which a bill of rights provides,
while their people need the reassurance which it can supply.”
CANADA
● An outstanding example of the enactment of a bill of rights through amendment in the
constitution is Canada.
● To begin with, the Canadian Constitution had only a few guaranteed Rights.
● Then, the Canadian Parliament enacted a law laying down basic Rights of the people.
● Being only a law made by Parliament, it did not constitute any restriction on Parliament
itself.
● Thus the matter had to be taken further as it is not enough to have basic rights but these
have to be safeguarded from state encroachment.
● This was taken further with the amendment of The Canadian Constitution, which
formally incorporated The Charter of Rights therein in 1982.
USA
● Constitution of USA was drafted in 1787
● The original constitution did not contain any Fundamental Rights
● Though, looking at the behaviour of the distant Government at London, the Americans
were suspicious of how their own Federal Government would behave and hence they
introduced in 1789, a Bill of Rights (by the first 10 Amendments).
● Initially it was thought that there was no need for a Bill of Rights against the Local/State
Government as they were representatives of the local people (in a democratic form of
Government). But gradually it was realised that the State Governments could also violate
rights.
● For instance, the Federal Government was in favour of abolishing slavery but the State
Governments opposed it. The Federal Government made a law abolishing slavery against
which the State Governments appealed in the Supreme Court (in the famous Red Scott
Case). The Supreme Court held that, which later led to a civil war.
● The Bill of Rights came to be incorporated in the Constitution in 1791 and Fundamental
Rights are now guaranteed against the State Government also.
● Ten amendments which embody the LOCKEAN ideas about the protection of LIFE,
LIBERTY and PROPERTY
● "The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy
● One’s right to life, liberty, and property, to free speech, a free press, freedom of worship
and assembly and other Fundamental Rights may not be submitted to vote; they depend
on the outcome of no elections."
USA VIS-A-VIS INDIA
● The fundamental rights adopted by India are reminiscent of The Bill Of Rights In the
Constitution.
● The U.S. Constitution declares the fundamental rights in broad and general terms
● Whereas, The Indian Constitution adopts a different approach where the Fundamental
rights are detailed and complex.
LESSONS FROM USA
Judicial opinion is often changing with the need of time but also different opinions and ideas of
different judges impacting the decisions. The decisions are contrasting ver so often that the law
becomes uncertain.
This can be inferred from the slavery case as well where the courts held that ‘property’ could not
be taken away without compensation and as slaves were property, slavery could not be
abolished. But this arbitrary decision was challenged and a change was brought through a civil
war.
The judges in The U.S. are almost irremovable and are not elected. This gives them absolute and
arbitrary power to do what they wished to do. Hence, a complete and unqualified veto over
legislation could not be left in judicial hands.
There were many great difficulties visualised in enunciating the Fundamental Rights in general
terms in India as well. It was left to the courts to enforce them and answer the mass of litigation
about the validity of the laws.
Though the lesson learnt from the U.S.A. shows us that Judges may not be as sensitive to public
needs in the social or economic sphere as the elected legislators, and so a complete and
unqualified veto over legislation could not be left in judicial hands.
FUNDAMENTAL RIGHTS IN INDIA
DEVELOPMENT OF FUNDAMENTAL RIGHTS IN INDIA
➔ ROLE OF CONGRESS PARTY
➢ The British afflicted grave torture on the Indians, through their arbitary measures
of the Governemnt. The Congress Party, main party fighting for India's
independence, demanded some basic human rights to be given to the people and
the same be protected by Constitutional measures.
➢ The Government of India Act, 1935, however, contained no affirmation of
Fundamental rights. Both the Simon Commission and the Joint Parliamentary
Committee were opposed to the inclusion of a declaration to that effect in a
constitutional document. They held that the declaration of rights would create a
grave risk of a large number of laws being declared invalid and would impose an
embarrassing restriction on the powers of the Legislature.
➢ The view of the Congress party was that a declaration of Fundamental Rights in
the constitutional document is necessary for the welfare of the people. Rights are
the groundwork of the state. They are the quality which gives the exercise of its
power a moral character. And they are natural rights in the sense that they are
essential for a good life. Where a right is guaranteed by the constitution it
commands the respect of the people and the Government alike.
➔ CONSTITUENT ASSEMBLY
➢ Thus while framing the Constitution, the framers of the Indian Constitution took
inspiration from the Magna Carta of England, the Declaration of Rights of Man
and Citizens (France) and the U.S. Bill of Rights.
➢ The inclusion of a Chapter on Fundamental Rights in the constitution is in
accordance with the trend of modem democratic thought. The idea being to
preserve that which is an indispensable condition of a free society.
➢ In West Virginia State Board of Education v. Barnet, Jackson J., explaining the
nature and the purpose of the Bill of Rights observed: ‘The very purpose of a Bill
of Rights was to withdraw certain subjects from the vicissitude of political
controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the Courts. One’s rights to life,
liberty and property, to free speech, to free press, freedom of worship and
assembly and other Fundamental Rights may not be submitted to vote, they
depend on the outcome of no election’.
➔ FUNDAMENTAL RIGHTS ASSURE:
➢ BASIC CIVIL RIGHTS AND FREEDOMS
❖ These rights are regarded as fundamental because they are most essential
for the attainment by an individual of his full intellectual, moral and
spiritual status.
❖ The declaration of Fundamental Rights in the Constitution serves as a
reminder to the Government in power that certain liberties, assured to the
people by the Constitution are to be respected.
❖ The danger of encroachment on liberties is particularly great in
Parliamentary democracy where those who form the Government are the
leaders of the majority party in the Parliament/ Legislature and can get
laws made according to their own wishes.
❖ Fundamental Rights ensure that there is a ‘government of law and not of
man’ in the country.
❖ The object is to establish a rule of law and the Indian Constitution goes
much beyond – the object is not only to provide security and equality of
citizenship of the people and thereby helping a nation building but also to
provide certain standards of conduct citizenship justice and fairplay.
➢ SAFEGUARDS TO MINORITIES
❖ All citizens are not at an equal status in the county. All have a different
social status which affects their position in the society and how they are
treated by others. This situation is not safe for the minorities i.e. the
groups who are lesser in number. The fundamental rights guarantee that all
citizens shall have equal opportunity in all spheres of life.
❖ Reservation is a system of affirmative action in India that provides
historically disadvantaged groups representation in education,
employment and politics. Based on provisions in Indian Constitution, it
allows the Indian government to set reserved quota for seat which will
lower the qualification needs in exams jobs opening except for ‘socially
and economically backward citizen’
➢ OUTLAWING DISCRIMINATION
❖ A v dicey in his book The Constitution of England developed the concept
of rule of law. According to this rule every individual whether of any
status does anything against the legal framework would be equally liable
under the legislations of law and would be treated equally. According to
rule of law Supremacy does not belong to any person there is always
Supremacy of law.
❖ Right to equality is the most important fundamental right guaranteed to the
citizens under Article 14. This is done to make sure that all citizens are
treated equally by the state and in the society.
❖ Discrimination on the basis of sex, caste, colour, creed and religion is
prevented by the Fundamental Rights through Article 15.
➢ PROTECTING RELIGIOUS FREEDOM AND CULTURAL RIGHTS
❖ Indian society is fragmented into many religions, cultural and linguistic
groups and it was necessary to declare fundamental rights to give to the
people a sense of security and confidence.
❖ The Fundamental Rights are based on the idea that citizens of the county
shall be allowed to live in the way they want, following their religious and
cultural practices without any fear of retaliation by the society. The state
guarantees them these freedoms through the Fundamental rIghts itself,
It is generally said that Fundamental Rights are Negative Rights. The logic behind this emanates
from the idea that the Government shall not do certain things But this is prima facie an
incorporation of the utilitarian principles of the lassaiz fairs/police state concept. This is not
adequate as the State now is not a mere police state: rather it has assumed the status of a welfare
state.
FUNDAMENTAL RIGHTS ARE PART OF THE BASIC STRUCTURE OF THE
CONSTITUTION:
● They cannot be contravened or abridged
● They are inherent
● Any law that abrogates or abridges such rights would be void. Article 13, in detail discuss
the violation of fundamental rights and the voidability of such laws or orders.
● During an emergency, however, some curtailment of the fundamental rights does take
place. Fundamental Rights are suspended during the time of emergency and Rights of the
citizens are curtailed temporarily except Right to life and personal Liberty.
FUNDAMENTAL RIGHTS: divided into seven groups
● Right to equality
❖ Right to Equality comprising Articles 14 to 18, of which Article 14 is the most
important.
● Right to freedom
❖ Right to Freedom comprises Articles 19 to 22 which guarantee several freedoms,
the most important of which is the freedom of speech.
● Right against exploitation
❖ Right against Exploitation consists of Articles 23 and 24.
● Right to freedom of religion
❖ Right to Freedom of Religion is guaranteed by Articles 25 to 28.
● Cultural and educational Rights
❖ Cultural and Educational Rights are guaranteed by Articles 29 and 30.
● Right to Constitutional Rights
❖ Right to Constitutional Remedies is secured by Articles 32 to 35.
❖ These Articles provide the remedies to enforce the Fundamental Rights, and of
these the most important is Art. 32.
● Right to property
❖ Right to Property is now very much diluted and is secured to some extent by Arts.
30-A, 31-A, 31-B and 31-C.
BALANCE BETWEEN THE RIGHTS OF THE INDIVIDUAL AND THOSE OF THE STATE
The notion of rights grew with the growth of the concept of state. As the institution of state grew
and became distinct from the general public, different combinations of powers (in the form of
state) started dominating the others. These combinations could be different in different societies
or countries, viz., religious combinations; feudal combinations, racial combinations etc. These
combinations started accumulating power in their own hands at the expense of those who were
ruled, in order to gain more and more benefits for their own class. And with this grew the idea of
some kind of rights to the people other than the ‘state’, in order to protect their interests. The
attempts were initially at protecting the individual against the state i.e. the guaranteed
Fundamental Rights were used against the state. Had the society been homogeneous there would
have been no need for Fundamental Rights e.g., if the division has been only on political lines,
there would have been no need for Fundamental Rights. But the divisions in the society as such
are heterogeneous. Divisions are on political lines, sex lines, caste lines, place of birth lines,
linguistic lines etc. and hence the need for Fundamental Rights.
The idea of Fundamental Rights is not actually that of curtailing something from the State but to
ensure a better life to the people who ultimately constitute the state itself. This was realized
particularly after World War II and as a step towards this realization came the U. N. D. H. R.,
1948. A point to be noted in this respect is that the constitutions are not perfect in the respect;
rather they are moving in that direction and the interpretations of the constitution have to be
made in that light e.g. the case of Secy. Ministry of Information and Broadcasting v. Cricket
Control Board of India (1995) in which the Supreme Court had declared that the airwaves should
be controlled by an autonomous public authority. This Case involved an interpretation of the
Fundamental Rights to expression. The actual question involved was not that of autonomy but
the values involved. There has been a growth in that direction. (This growth, however, might get
perverted at a certain stage but one does not actually know that).
The fundamental rights constitute by and large a limitation on the government:
● In the area of non- economic matters, like freedom of speech or the right to life: the line
has been shifting in favour of the individual.
● While in the area of economic matters, the line has been in favour of social control:
❖ Emphasis has come to be laid on social control in economic matters leading to the
emergence of a regulated economy.
❖ The right to property also has had a chequered history:
★ This has been achieved both by judicial interpretation as well as
constitutional amendments.
★ The Fundamental Rights guarantee certain economic rights, though too
much emphasis on these rights might have led to the emergence of a
laissez- faire economy in India which is now an out-of-date concept.
★ The right to property, originally, was secured by Arts. 19(1)(f) and 31. But
now, the Fundamental Right to property has been very much diluted.
NEW JUDICIAL TREND IN FUNDAMENTAL RIGHTS
In Gopalan’s case, the Court had taken a very restrictive approach, ruling that the various
Fundamental Rights included in the Constitution are mutually exclusive i.e., if an enactment (or
executive action taken) is made under a particular article, its validity has to be judged in light of
the provisions of that particular article alone and not with respect to other articles. Also, earlier it
was thought that only the Fundamental Rights enlisted in the Constitution are the inputs available
to the people. But the trends have changed since then and particularly after the Maneka Gandhi,
Sunil Batra and Hussainara Khatoon cases.
In Maneka Gandhi case, Bhagwati J., held: “the correct way of interpreting the provision of Part
III is that attempt of the Court should be to expand the reach and ambit of Fundamental Rights
rather than attenuate their meaning and content”. It has also been held in Maneka Gandhi case
that the various articles are not mutually exclusive but form a single integrated scheme in the
constitution. Bhagwati J., said: “Their water must mix to constitute that grand flow of unimpeded
and impartial justice. Isolation of the various aspects of human freedom for purposes of their
protection, is neither realistic nor beneficial but would defeat the objects of such protection”.
Accordingly, a law depriving a person of his personal liberty under Article 21 must also satisfy
the test of reasonableness under Articles 14 and 19 of the constitution.
Further, it was held that to be a Fundamental Right, it is not necessary that a right must be
specifically mentioned in a particular article. It may be a Fundamental Rights if it is an integral
part of a named Fundamental Rights or partaker of the same basic nature and character as that
Fundamental Right. Every activity that facilitates the exercise of the named Fundamental Right
may be considered an integral part of that right and hence be a Fundamental Right. Accordingly,
several new rights have been brought under the fold of the named Fundamental Rights:
1. Hussainara Khatoon – Right to speedy trial
2. Olga Tellis v. Bombay Municipal Corporation – Right to livelihood
3. Francis Coralie v. U. T. of Delhi – Right to socialise
4. Maneka Gandhi – Right to travel abroad
5. Sunil Batra – Protection to prisoners from degrading and inhuman treatment in jail
6. Sakal Papers – Freedom to decide the number of pages of a newspaper
7. Bennett Coleman – Freedom of circulation of newspapers etc.
8. Secy., Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) -
Right to communicate:
a) Right to impart and receive information
b) Freedom over airwaves
c) Right to educate and entertain
9. R. C. Cooper and Maneka Gandhi – Principles of natural justice must be satisfied by a
procedure depriving a person of his right to live and personal liberty. Natural justice is a distillate
of due process. In India, though there is no due process clause as the VIIIth Amendment of the
U. S. Constitution, the effect after Cooper and Maneka Gandhi’s cases is the same.
10. Sunil Batra – Prison reforms
11. Judges Transfer case (S.P. Gupta and others v. President of India and others, 1982) –
Scope of the writ of habeas corpus expanded – anyone though not directly involved but having a
sufficient interest can file a writ petition or send even a letter. (PIL)
12. Human Right Jurisprudence – Krishna lyer, J., in Sunil Batra (2) case said: “Today human
rights Jurisprudence in India has constitutional status”. In 1979, India became a party to
International covenant on civil and political rights: Article 10 – “ All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity of the human
persons”. Article 5 of the U. N. declaration of Human Rights, 1948 – “No one shall be subjected
to torture or to inhuman or degrading treatment or punishment”.
13. Prem Shankar v. Delhi Administration (1980) – held that in interpreting the Constitutional
and statutory provision the Court must not forget the core principle found in Article 5 of the U.
N. D. H. R., 1948. This is a welcome trend: Prison reforms, environmental law, socio-economic
upliftment, etc.