FUNDAMENTAL RIGHTS : CONCEPT AND NATURE

By CS  Shirish Bhootra

2022-08-27

Introduction :

Fundamental rights are provided under part III of the  Constitution of India which was adopted on 26th November 1949 but came into effect on 26th January 1950. These Fundamental rights provide a guarantee that every citizen of this nation can live a life of peace and harmony throughout the territory of India and these rights were included in the constitution as for the development of every person they are considered essential.  Irrespective of all races, religions, castes, or sex,  all have been provided with the right to move to the Apex Court Supreme Court or the High Court for the enforcement of these rights. These Fundamental rights are further classified into seven categories which are mentioned in the form of articles starting from Article 12 to Article 35 of the Indian Constitution.

        Origin and development of The Concept of Fundamental rights

 Rights that are fundamental in nature are considered an important part of the Indian Constitution.  The origin of these rights is from France’s Declaration of Bill of Rights of Man, England’s Bill of Rights, the Development of the Irish Constitution, and also, the United States of America’s Bill of Rights.

Initially, the constitution provided for seven Fundamental rights,

  1. Right to Equality (Article 14 to 18),
  2. Right to Freedom (Article 19 to 22),
  3. Right against exploitation ( Article 23 and 24),
  4. Right to freedom of religion (Article 25 to 28),
  5. Cultural and Educational rights (Article 29 to 30),
  6. Right to property (Article 31),
  7. Right to Constitutional remedies (Article 32).

At a later stage, property right was eliminated from the list of fundamental rights by the 44th Amendment Act of 1978.  As of now, only six fundamental rights form part of the Indian Constitution.

Fundamental Rights: Features

The fundamental rights  as provided by the Indian Constitution possess certain features that highlight their uniqueness which are mentioned below :

  1.  Certain  Fundamental rights have been mentioned only for Indian Citizens, however, few fundamental rights are for all whether  Indian citizens or foreign citizens and also extend to artificial persons like companies, firms, etc.
  2.  State has been authorized to impose restrictions on these rights though they should be reasonable in nature, thereby making them qualified and not absolute.
  3.  Fundamental Rights as provided in Constitution are defensive in nature and guaranteed by the Supreme Court of India, hence the aggrieved party has been provided with the power to move to the Supreme Court if these rights have been infringed.
  4.  During the period of National Emergency these rights can be suspended except for the rights defined under Articles 20 and 21.
  5.  On the imposition of military rule to restore order in the occurrence of abnormal situations these rights can be restricted  (Article 34) and is not similar to the imposition of a national emergency.
  6.  Parliament has been provided with powers regarding restrictions and abrogation of these rights.  (Article 33), rights of armed forces, police forces, intelligence agencies, etc. can be restricted by this Article.

         Fundamental Rights (Article 12 to Article 35 of the Indian Constitution) –


Article 12. Definition

Article 13.  Laws inconsistent with or in derogation of the fundamental rights

Article 14. Equality before law

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

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

Article 17 –  Abolition of untouchability

Article 18 –   Abolition of titles

Article 19.  Protection of certain rights regarding freedom of speech etc

Article 20.  Protection in respect of conviction for offenses

Article 21.  Protection of life and personal liberty

Article 21A.  Right to education

Article 22.  Protection against arrest and detention in certain cases

Article 23.  Prohibition of traffic in human beings and  forced labor

Article 24.  Prohibition of employment of children in factories etc

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

Article 26.  Freedom to manage religious affairs

Article 27.  Freedom as to payment of taxes for promotion of any particular religion

Article 28.  Freedom as to attendance at religious instruction or religious worship in certain educational institutions

Article 29.  Protection of interest of minorities

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

Article 31.  Repealed

Article 31a.  Saving of laws providing for acquisition  estate etc

Article 31b.  Validation of certain Acts and regulations

Article 31c.  Saving of laws giving effect to certain Directive principles

Article 31d. Repealed

Article 32.  Remedies for enforcement of rights conferred by this part

Article 32a.  Repealed

Article 33.  Power of Parliament to modify the rights conferred by this part in their application to forces, etc

Article 34.  Restriction on rights conferred by this part while Martial Law is in force in any area

Article 35. Legislation to give effect to the provision of this Part.



Fundamental rights –  Its nature :

           
Basic inherent human rights – Fundamental rights are basic inherent human rights.

Guaranteed rights – Fundamental rights are also guaranteed rights as they are provided and guaranteed by the constitution.

Protected rights – Fundamental rights can also be said as  protected rights, as no person, be it  Union or state government can violate it

Enforceable rights –  fundamental rights are enforceable rights in nature as the Apex Court known as Supreme Court is the protector, Guardian, and Sentinel of fundamental rights under article 32.

 Fundamental rights are not said to be absolute. Indian Government possesses the authority to impose restrictions reasonable on rights, during a period of emergency. The Constitution itself says about power provided to the legislature to impose limitations or restrictions.

Fundamental rights and citizenship – 
  Among various fundamental rights, a few fundamental rights are also available to persons who are not citizens of India.

 Fundamental Rights: Inconsistency with law

  •  Article 13  of the Indian Constitution provides that all laws that are inconsistent with fundamental rights as provided under part III shall be considered void.  Even the Indian Supreme Court and the High Courts have been provided with powers to declare a law unconstitutional and invalid on the account of violation of any of the Fundamental rights.
  • Article 13 also highlights that a constitutional amendment could not be considered as law and thereby cannot be challenged in the courts of law however it was provided during the case of Kesavananda Bharti v.  the State of Kerala that a constitutional amendment can be challenged because it is in violative nature of the fundamental rights which form a part of the ‘basic structure of the Constitution of India and it can be declared to be void.

Conclusion  :

Fundamental Rights as provided in the Indian Constitution are very essential for all to leave life with dignity, respect, and with freedom, it plays a crucial role in human development as well as human existence.

Bottom of Form

RREFERENCES :

  1. Constitution of India.
  2. blog. ipleaders.in/fundamental-rights-in-the-constitution-of-India/
  3. SRD law notes.

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