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Fundamental Rights
Fundamental Rights are included in Part III of the Indian Constitution (Articles 12 to 35). The Fundamental Rights bolster the notion of political democracy. The rules enumerated in Fundamental Rights are designed to prohibit authoritarian regimes and harsh rule and protect people’s liberties and freedoms from state incursion.
Why are these rights called Fundamental Rights?
They are fundamental because they are necessary for an individual’s overall development (material, intellectual, moral, and spiritual). They are protected by the Constitution.
How are fundamental rights in the Indian Constitution different from Legal Rights?
- The written Constitution protects and guarantees fundamental rights, whereas ordinary law protects and imposes legal rights
- A lawsuit can be filed in a lower court, or a writ application can be submitted in a higher court in the case of a breach of legal rights (i.e. following the hierarchical judicial procedure). However, a violation of fundamental rights in the Indian Constitution can be brought immediately before the Supreme Court
- Legal rights may be changed through a simple legislative process, while fundamental rights in the Indian Constitution cannot be changed without amending the Constitution (i.e., a special majority)
Fundamental Rights not absolute but qualified rights:
They are subjected to several limitations imposed by the government, in exceptional cases such as:
- India’s sovereignty and integrity
- India’s security
- Maintaining Friendly & cordial international relations with countries
- In the interest of public decency and order, the Supreme Court and High Courts determine whether the limits are acceptable or not
Judicial Review and fundamental rights in the Indian Constitution:
- In the case of Dr Thomas Bonham vs College of Physicians, Lord Coke was the first to recognize the notion of judicial review
- The primary tenet of Judicial Review is the supremacy of the law
- The Supreme Court and the High Court have the power to declare a statute unconstitutional and invalid if it is incompatible with any article of the Constitution to the point of contradiction
- Judicial Review is a power that may be used against both the legislative and the executive branches
- States do not enact laws restricting the rights enumerated in Part 3 of the Constitution. Any law enacted in violation of this section is invalid to the extent of the violations
Can Fundamental Rights be amended?
The Supreme Court’s decision in Golaknath versus the state of Punjab (1967) (7th Constitutional Amendment Act, which added certain acts to the 9th schedule) was as follows:
- Fundamental Rights have a metaphysical status in the Constitution. Therefore no authority, including parliament, can amend them
- The Supreme Court declared in Kesavananda Bharati versus the state of Kerala, 1973, that parliament can change any section of the Constitution, including Part III, but that this power is confined to not damaging the “basic structure of the Constitution”
Features of Fundamental Rights (FRs):
Here are some of the features of fundamental rights of Indians:
- Some are solely available to Indian nationals, while others cover all people, including citizens, foreigners, and legal entities such as organizations and enterprises
- They are qualified rather than absolute
- They are justiciable, which means that if they are infringed, an individual can go to court to have them enforced (subject to some restrictions)
- They aren’t sacred or indestructible
- Except for the rights provided by Articles 20 and 21, they cannot be withdrawn in the event of a national emergency
- In places where martial law or military control has been installed, their fundamental rights may be restricted or suspended
Classification of Fundamental Rights and right to freedom:
- Right to equality (Article 14-18)
- Right to Liberty (Article 19-22)
- Right against exploitation (Article 23- 24)
- Right to freedom of religion (Article 25-28)
- Cultural and educational rights (Article 29-30)
- Right to Constitutional Remedies (Article 32)
- The 44th Amendment Act of 1978 removed the right to property from the list of fundamental rights in the Indian Constitution. Article 300-A of Part XII of the Constitution establishes it as a legal right
