Understanding Fundamental Rights in the Constitution

 
Nature and Significance of
Fundamental Rights
 
The constitution is a document that 
sets limits on the
powers of the government and ensures a democratic
system in which all persons enjoy certain rights.
Fundamental rights,
 embodied in Part III of the
Constitution guarantees to each citizen 
basic substantive
and procedural protections against the state.
They can be categorized in to two types: 
positive and
negative
. 
Negative rights 
are those, which 
limit state
action and prohibit the state from doing certain things-
e.g.
Art. 14, which states, “ The state shall not deny to any
person equality before the law or equal protection of laws
within the territory of India.” 
Positive rights
, on the other
hand, are those rights that 
permit a citizen to enjoy certain
freedoms
-e.g. Art. 19, which gives the right to freedom.
 
Citizens Vs Non-citizens
 
Some of the rights like 
‘equality before law and equal
protection of laws’ (Art. 14), protection of life and
personal liberty (Art. 21),
 protection in respect of
conviction for offences (Art.20), free and compulsory
education for all children of 6-14 years (Art.21 A),
Protection against arrest and detention in certain cases
(Art.22), freedom of religion (Art.25-28), etc are
available to all persons whether citizens or not.
But rights like the 
right to equality of opportunity in
employment (Art.16), protection from discrimination
on grounds only of religion, race, caste sex and place of
birth (Art.15) and freedom of speech and expression,
assembly, association, movement, residence and
profession (Art. 19).
 
Neither Universal Nor Absolute
 
Fundamental rights are 
not universal in application.
Some of the fundamental rights and the extent of
their enjoyment can be restricted or even abrogated
by Parliament under Art. 33.
 Thus the rights of the
citizens in the armed forces or the forces in charge with
the maintenance of public order can be restricted or
abrogated.
Fundamental rights are not absolute as they are 
clearly
defined in their scope as well as limitations.
 The
prescribed limitations are in the 
interest of public
good, social reforms, public order, morality and the
safety of the state.
 The constitution allows the state to
impose 
‘reasonable restrictions’ 
on certain rights, but
the 
‘reasonableness’ of the restrictions is a justiciable
matter.
 
Granted to Individuals as well as to
Groups
 
Right to freedom of religion and cultural and
educational rights incorporate 
the rights of
the minorities.
 
Abolition of untouchability is
also a group right.
 Thus, rights are not only
against the state but 
also against individuals
in certain cases.
Rights are amendable,
 but this amendment
has to be according to the procedure
established by the Constitution itself.
 
Fundamental Rights are Justifiable
 
If any of these rights is violated, the 
individual affected is entitled
to move the Supreme Court or High Court for the protection and
enforcement of her/his rights.
Fundamental rights 
can also be suspended during an emergency,
except the right to life.
Apart from fundamental rights, there are two other kinds of rights
flowing from other parts of the Constitution: 
Constitutional rights
and legal rights.
i.
Constitutional rights are created by imposition of restrictions
upon the state 
on its claims upon the citizens-e.g. 
Art. 265
forbids levying and collection of taxes except by the authority of
law; Art. 
300A 
provides that no person shall be deprived of
her/his property save by the authority of law.
ii.
Legal rights flow from statutes based upon the Constitution but
not directly from it
. A legal right is created by an ordinary law and
can be taken away by changing the law.
 
 Rights in Indian Constitution Vs. those
in the US Constitution
 
The 
US Constitution states the rights in a very crisp and
unqualified language.
 The conditions or the limits on the rights are
not mentioned in the constitution. It is the judiciary which
elaborates the limitations or places conditions on the rights stated
in the constitution.
On the other hand, in the Indian Constitution most of the
fundamental rights are stated in qualified terms,
 like ‘subject to
public order’, ‘social reforms’ and ‘morality’. Though there is a very
limited role for judicial determination, 
nonetheless the judiciary is
frequently required to interpret the articles 
on fundamental rights
in the light of the qualifications attached to them.
Another difference is that while the 
Indian Constitution provides
for both individual and group rights
 its American counterpart
grants only individual rights.
The constitution makers of the USA were guided by the 
18
th
century laissez faire doctrine 
but the constitution makers of India
were guided by the 
welfare philosophy of the 20
th
 century
 that
held social control over individual rights as essential.
 
Scope of State Intervention
 
Although fundamental rights are mostly 
against arbitrary
state intervention
 there are also some rights which are
against social discrimination among people
-e.g. Art.17 and
Art.23.
The state is enjoined to lend its authority in favour of the
victims of exploitation and discrimination 
and uphold the
right against exploitation.
The 
state has also been authorized 
by the Constitution to
take special measures for public purpose, social reform,
and the welfare of the weaker sections
 like women,
children, members of the backward classes, the SCs and the
STs.
Amendments of the Constitution
, in this context, have led
to the 
widening economic opportuniti
es of the socially,
economically, and educationally backward classes.
 
Scope and Limits of Fundamental
Rights
 
The Constitution of India declared, at the time of the
commencement of the Constitution, 
that all the laws in
operation would continue to remain in force only if they
conformed to and were consistent with the fundamental
rights 
guaranteed in Part III of the Constitution-e.g. Art.13.
Art. 32-Right to constitutional remedies strengthens the
two-fold prohibition (Art. 13) 
through which the 
Supreme
Court 
is empowered to 
issue writs 
for the enforcement of
the fundamental rights which is available to any person.
Parliament
 can however, 
modify the application of the
rights to members of the armed forces or the forces in
charge of maintenance of public order,
 or the branches
dealing with intelligence and telecommunications as they
deal with sensitive subjects-e.g. power to the Parliament by
Art. 33.
 
Right to Equality-Articles 14 to 18
 
According to Art.14, ‘the state shall not deny to any person
equality before the law or equal protection of laws 
within
the territory of India’.
The 
‘equality before law’, which is a British concept (Rule
of Law), means that the laws will be equally administered
and that there shall not be any discrimination between
persons
. Everyone is equal in the eyes of law. Negatively, it
would mean absence of privilege or discrimination.
‘Equal protection of law’ 
on the other hand, which is an
American doctrine, means application of law equally in
the like situation.
 This means subjection to equal laws
applying alike to all in the same situation.
If the conditions and situations are different for one group
of persons from others then a differential law for them
should not be deemed unconstitutional 
provided there is a
reasonable basis for differential treatment.
 
Equal Protection of Law: Classification
on Intelligible Differentia
 
Since equality does not mean identical treatment the
state may classify persons for purposes of legislation
.
But this classification should be on 
reasonable grounds
and it should not be arbitrary.
This classification should be founded on 
intelligible
differentia,
 which distinguishes those who are grouped
together from others and 
this differentia should have
a rational basis to the object sought to be achieved by
law.
Articles 15, 16, 17 and 18, broadly relate to socio-
economic equality.
 Besides, unlike Art.14 they apply
only to citizens of India.
 
Equality of Status and Equality of
Opportunity: Affirmative Action
 
All sections of the society enjoying equal
opportunities 
in a society where there are
various kinds of social inequalities is
problematic.
So the Constitution clarifies that the 
government
can implement special schemes and measures
for improving the conditions of certain sections of
society: children, women, and the socially and
educationally backward classes.
Slide Note
Embed
Share

Fundamental rights in the Constitution establish limits on government powers, ensuring democratic systems. They include both positive and negative rights, accessible to citizens and non-citizens but subject to restrictions in certain contexts. Violations of these rights can be challenged in courts, and they are justiciable, with exceptions during emergencies. These rights are amendable following constitutional procedures and encompass both individual and group protections.


Uploaded on Jul 17, 2024 | 0 Views


Download Presentation

Please find below an Image/Link to download the presentation.

The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.

E N D

Presentation Transcript


  1. Nature and Significance of Fundamental Rights The constitution is a document that sets limits on the powers of the government and ensures a democratic system in which all persons enjoy certain rights. Fundamental rights, embodied in Part III of the Constitution guarantees to each citizen basic substantive and procedural protections against the state. They can be categorized in to two types: positive and negative. Negative rights are those, which limit state action and prohibit the state from doing certain things-e.g. Art. 14, which states, The state shall not deny to any person equality before the law or equal protection of laws within the territory of India. Positive rights, on the other hand, are those rights that permit a citizen to enjoy certain freedoms-e.g. Art. 19, which gives the right to freedom.

  2. Citizens Vs Non-citizens Some of the rights like equality before law and equal protection of laws (Art. 14), protection of life and personal liberty (Art. 21), protection in respect of conviction for offences (Art.20), free and compulsory education for all children of 6-14 years (Art.21 A), Protection against arrest and detention in certain cases (Art.22), freedom of religion (Art.25-28), etc are available to all persons whether citizens or not. But rights like the right to equality of opportunity in employment (Art.16), protection from discrimination on grounds only of religion, race, caste sex and place of birth (Art.15) and freedom of speech and expression, assembly, association, movement, residence and profession (Art. 19).

  3. Neither Universal Nor Absolute Fundamental rights are not universal in application. Some of the fundamental rights and the extent of their enjoyment can be restricted or even abrogated by Parliament under Art. 33. Thus the rights of the citizens in the armed forces or the forces in charge with the maintenance of public order can be restricted or abrogated. Fundamental rights are not absolute as they are clearly defined in their scope as well as limitations. The prescribed limitations are in the interest of public good, social reforms, public order, morality and the safety of the state. The constitution allows the state to impose reasonable restrictions on certain rights, but the reasonableness of the restrictions is a justiciable matter.

  4. Granted to Individuals as well as to Groups Right to freedom of religion and cultural and educational rights incorporate the rights of the minorities. Abolition of untouchability is also a group right. Thus, rights are not only against the state but also against individuals in certain cases. Rights are amendable, but this amendment has to be according to the procedure established by the Constitution itself.

  5. Fundamental Rights are Justifiable If any of these rights is violated, the individual affected is entitled to move the Supreme Court or High Court for the protection and enforcement of her/his rights. Fundamental rights can also be suspended during an emergency, except the right to life. Apart from fundamental rights, there are two other kinds of rights flowing from other parts of the Constitution: Constitutional rights and legal rights. i. Constitutional rights are created by imposition of restrictions upon the state on its claims upon the citizens-e.g. Art. 265 forbids levying and collection of taxes except by the authority of law; Art. 300A provides that no person shall be deprived of her/his property save by the authority of law. ii. Legal rights flow from statutes based upon the Constitution but not directly from it. A legal right is created by an ordinary law and can be taken away by changing the law.

  6. Rights in Indian Constitution Vs. those in the US Constitution The US Constitution states the rights in a very crisp and unqualified language. The conditions or the limits on the rights are not mentioned in the constitution. It is the judiciary which elaborates the limitations or places conditions on the rights stated in the constitution. On the other hand, in the Indian Constitution most of the fundamental rights are stated in qualified terms, like subject to public order , social reforms and morality . Though there is a very limited role for judicial determination, nonetheless the judiciary is frequently required to interpret the articles on fundamental rights in the light of the qualifications attached to them. Another difference is that while the Indian Constitution provides for both individual and group rights its American counterpart grants only individual rights. The constitution makers of the USA were guided by the 18th century laissez faire doctrine but the constitution makers of India were guided by the welfare philosophy of the 20thcentury that held social control over individual rights as essential.

  7. Scope of State Intervention Although fundamental rights are mostly against arbitrary state intervention there are also some rights which are against social discrimination among people-e.g. Art.17 and Art.23. The state is enjoined to lend its authority in favour of the victims of exploitation and discrimination and uphold the right against exploitation. The state has also been authorized by the Constitution to take special measures for public purpose, social reform, and the welfare of the weaker sections like women, children, members of the backward classes, the SCs and the STs. Amendments of the Constitution, in this context, have led to the widening economic opportunities of the socially, economically, and educationally backward classes.

  8. Scope and Limits of Fundamental Rights The Constitution of India declared, at the time of the commencement of the Constitution, that all the laws in operation would continue to remain in force only if they conformed to and were consistent with the fundamental rights guaranteed in Part III of the Constitution-e.g. Art.13. Art. 32-Right to constitutional remedies strengthens the two-fold prohibition (Art. 13) through which the Supreme Court is empowered to issue writs for the enforcement of the fundamental rights which is available to any person. Parliament can however, modify the application of the rights to members of the armed forces or the forces in charge of maintenance of public order, or the branches dealing with intelligence and telecommunications as they deal with sensitive subjects-e.g. power to the Parliament by Art. 33.

  9. Right to Equality-Articles 14 to 18 According to Art.14, the state shall not deny to any person equality before the law or equal protection of laws within the territory of India . The equality before law , which is a British concept (Rule of Law), means that the laws will be equally administered and that there shall not be any discrimination between persons. Everyone is equal in the eyes of law. Negatively, it would mean absence of privilege or discrimination. Equal protection of law on the other hand, which is an American doctrine, means application of law equally in the like situation. This means subjection to equal laws applying alike to all in the same situation. If the conditions and situations are different for one group of persons from others then a differential law for them should not be deemed unconstitutional provided there is a reasonable basis for differential treatment.

  10. Equal Protection of Law: Classification on Intelligible Differentia Since equality does not mean identical treatment the state may classify persons for purposes of legislation. But this classification should be on reasonable grounds and it should not be arbitrary. This classification should be founded on intelligible differentia, which distinguishes those who are grouped together from others and this differentia should have a rational basis to the object sought to be achieved by law. Articles 15, 16, 17 and 18, broadly relate to socio- economic equality. Besides, unlike Art.14 they apply only to citizens of India.

  11. Equality of Status and Equality of Opportunity: Affirmative Action All sections of the society enjoying equal opportunities in a society where there are various kinds of social inequalities is problematic. So the Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.

Related


More Related Content

giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#