This article is written by
, from Amity Law School, Lucknow. This article provides a detailed analysis of fundamental rights and constitutional rights, their meaning, origin, scope, and classification, while focusing mainly on the differences between the two.
The concept of rights originated from the voice of protest against oppression perpetrated by the dominant group in society. Rights are meant to safeguard an individual from the irresponsible and arbitrary use of power by the state or the ruling class. The is one such supreme law of the land that contains various essential rights. It consists of fundamental rights, directive principles of state policy (DPSP), fundamental duties, etc.
The Indian Constitution is a unique legal document that enshrines a special kind of norm and stands at the top of the normative pyramid. Among every right incorporated in the Indian Constitution, fundamental rights are the most important, followed by other constitutional rights. Though fundamental rights are also part of constitutional rights, they are added in a different Part ( of the Constitution so as to give exclusive recognition to inherent human dignity and the equal and inalienable rights of all members of the human family. Such recognition is the foundation of freedom, justice, and peace in the world.
After independence, when India proceeded to become a welfare state, certain rights were considered fundamental for a dignified life. For instance, the right to equality without any discrimination, the right to freedom, etc. are essential rights for the dignified survival of an individual. However, the overall concept of rights is not limited to fundamental rights; there are other constitutional rights and legal rights.
Fundamental rights and constitutional rights are differentiated on the basis of their meaning, origin, scope, and classification. Following is the detailed differentiation between fundamental rights and constitutional rights on different grounds:
Constitutional rights, as the name suggests, are a set of rights specifically stipulated in the Constitution of a nation. These are the rights conferred on every citizen of the country, as we have adopted this Constitution and the rights thereunder for ourselves. The Preamble of the Indian Constitution is proof of this fact and expressly states that “We, the people of India ……do hereby adopt, enact and give to ourselves this Constitution.”
Unlike fundamental rights, which are granted to everyone without any discrimination on the grounds of age, sex, place of birth, etc., constitutional rights are not granted to everyone. For instance, the right to vote is a constitutional right guaranteed under for Indian citizens over 18 years of age.
Part III of the Constitution of India provides for important fundamental rights. The Indian Constitution guarantees basic human rights and liberty to all the people of India by means of fundamental rights. Along with that, fundamental rights also contain welfare measures for the downtrodden sections of society in order to uplift them and help them stand on par with the privileged or common population. Women, children, socially and economically backward classes, , and other backward classes of society have been granted upliftment through guaranteeing fundamental rights and recognising historical injustice. For instance, the provision for reservation under and incorporates the provision for the abolition of untouchability, which had been practised in the rural settings of the country for ages.
Fundamental rights are the set of rights granted to citizens of the country as well as non-citizens i.e., foreigners in some cases. For instance, the fundamental right of equality under is for all, irrespective of their religion, race, caste, sex, or place of birth. The importance of fundamental rights can be assessed by the fact that even during a period of emergency when all rights under the Constitution are suspended, only two fundamental rights persist: (i) the right to life and personal liberty under ; and (ii) right of protection with respect to a conviction against the state under .
In the case of , a family was travelling from Noida to Sahjahanpur, where they were waylaid by goons who then looted and gang raped the daughter and wife of the petitioner. While deciding on the question of whether fundamental rights can be enforced against private parties other than the state or its instrumentalities, the constitutional bench of the Supreme Court has affirmatively held that the original thinking of this Court that these rights can be enforced only against the state changed over a period of time. “The transformation was from “State” to “Authorities” to “instrumentalities of State” to “agency of the Government” to “impregnation with Governmental character” to “enjoyment of monopoly status conferred by State” to “deep and pervasive control” to the “nature of the duties/functions performed”.
In the year 1215, the then King John of England signed a Charter which is known as . The Magna Carta, or “Great Charter,” has great historical significance and influence in the development of the rules of constitutional law. The first codified Constitution of the world was the which was written in 1787 and came into force in 1788. It consisted of a Preamble, 7 Articles, a closing endorsement along with Bill of Rights.
Since constitutional rights are an after-effect of the Indian Constitution, their origin can be understood by the origin of the Constitution. All this starts with the published in 1928 as a result of the .
The Constitution of India has been assembled from borrowed features from British India’s legislation and the Constitution of other countries. Statutes such as the , the , and , the and the played a vital role in framing the Constitution we have now. It was the constituent assembly that drafted the Indian Constitution, consisting of all the rights, in almost 3 years. Since then, the people of India have enjoyed numerous constitutional rights, including civil and political rights, fundamental rights, social rights, and economic rights.
The of fundamental rights can be traced back to the 17th century with the introduction of theories that enumerated the concept of basic, inalienable natural rights. It was believed that, by virtue of being humans, we are all granted some natural and inseparable rights.
However, the modern trend of guaranteeing everyone basic fundamental rights can be traced back to 1789, when the first ever Constitution of the United States of America (USA) was drafted. The U.S. Constitution was the first modern constitution that gave the world a solid notion of human rights by incorporating them into the fundamental law of the land and making them justiciable and enforceable through the instrumentality of the Courts through the .
In a way, constitutional rights do not have a wider scope with regard to applicability and judicial interpretation. However, when it comes to the range of rights, it has a wider scope in the sense that it includes a wide range of rights and freedoms.
It can be seen from the following image that fundamental rights fall within the ambit of constitutional rights. The Indian Constitution contains certain rights that are known as constitutional rights. Further, there is a specific Part of the Constitution that guarantees basic rights known as fundamental rights.
Fundamental rights have a broader scope than normal constitutional rights. All laws in India are subject to judicial interpretation, and the higher judiciary has, from time to time, worked to broaden the scope and applicability of the fundamental rights. clearly states that the state is not empowered to make or formulate any law that derogates from the fundamental rights guaranteed under Part III of the Constitution. If state make such laws, they would be void to the extent that the particular law derogates from a fundamental right. This Article is also applicable to the laws that were passed before the commencement of the Constitution. So far, the law made before the commencement of the Constitution is inconsistent with the fundamental right; to that extent, it would be void. In this Article, the term ‘law’ has a very wide definition, which includes ordinance, order, bye-law, rule, regulation, notification, custom, or usages in force within the territory of India. Therefore, any statute, rule, regulation, or amendment that, even in the slightest way, contravenes the basic fundamental rights can be abrogated with immediate effects.
As held in the recent notable case of , also known as the Sabarimala case, where the question was raised on the practice of prohibiting women from entering the temple if they belong to the age group of 10-50. This practice was backed by Rule 3(b) of the which stated the right of Hindu denominations to exclude women from places of worship if it is done on the basis of customs. The Supreme Court, in this case, has held that this practice is violative of the right to equality under Article 14, the right against discrimination under Article 15, the right to liberty under Article 21, and the right to religion under . Consequently, Rule 3(b) of the Kerala Hindu Places of Public Worship Act, 1965 was declared unconstitutional.
Not only the laws of India, but if any Act or omission on the part of the state contravenes the fundamental rights given in Part III of the Indian Constitution. Please note that state here means the state defined under which includes the Central Government, State Governments, both Houses of Parliament, and the Legislative Assembly of each state, along with all local or other authorities within the territory of India or under the control of the Government of India.
Constitutional rights can be roughly classified into four categories namely, (i) civil rights; (ii) political rights; (iii) economic rights; and (iv) social rights
Civil rights are those rights, powers, immunities, and privileges that are conferred on citizens of any nation by virtue of being citizens. Civil rights are given to everyone regardless of their gender, class, caste, creed, race, ethnicity, religion, nationality, or any other personal character. It is being conferred to all the citizens residing within the territorial boundaries of a country for their peaceful and dignified existence.
In the case of , a PIL was filed in the Apex Court on the basis of news reports of a mass of undertrials being kept in the jails of Bihar for the period extending the actual imprisonment that might be awarded. The issue of contention in this case was whether the right to speedy trials is part of Article 21. A single judge bench of P. N. Bhagwati has held that “the State is under a constitutional mandate to ensure speedy trial”. Further, the Court held that the right to speedy trials is part of Article 21 as well as Article 14, which is about equal justice, and is also a compulsion of the constitutional directive embodied in .
Certain examples of civil rights guaranteed under the Indian Constitution, inter alia, include:
Every citizen of the country who is 18 years of age or older will have the right to vote without any discrimination on the basis of religion, race, caste, or sex.
The provisions of Article 20 grant every citizen the right to a fair trial. In other words, rights against self-incrimination, rights against ex-post facto laws, and rights against double jeopardy. To learn more about a fair trial, refer .
To know more about civil rights under the Indian Constitution, refer
The rights by which citizens of a country participate in the political agendas of the country, including that of the management of government, are known as political rights. Some of the important political rights granted under the Indian Constitution include the right to criticise the government, the right to vote, the right to contest elections, the right to public offices, the right to form political parties, the reservation of seats for certain classes in Parliament and legislative assemblies, etc.
Economic rights are those rights guaranteed under the Constitution to ensure the economic security of every citizen. Economic rights include the right to work, the right to a good working environment, the right to proper wages, the right to food, etc.
To learn more about economic rights under the Constitution, refer .
Social rights are those rights that are important to fulfil societal demands and promote social inclusion and solidarity. Social rights under the Indian Constitution include right to healthcare services, right to access to social protection, right to employment, right to free legal aid, social rights for minority social groups, etc.
Fundamental rights can be categorised into six classes-
The right to equality means treating everyone equally without any favouritism or discrimination towards any person or group. It means equality before the law and equal protection of the law under of the Indian Constitution. The interpreted meaning of the right to equality is “equality among equals” i.e., people with equal social and economic status must be treated equally. Therefore, any kind of discrimination on the grounds of religion, race, caste, sex, or place of birth is prohibited under of the Constitution. Further, vouchsafes for equality of opportunity for all citizens in the matter of public employment, in other words, there shall be no discrimination on the grounds of religion, sex, descent, race, caste, or place of birth in the matter of employment opportunity in public offices. However, this Article creates a separate room for the reservation of socially and economically backwards classes of citizens.
The right to equality is incomplete without breaking the shackles of the age-old practice of untouchability and differentiation on the basis of the elite and lower classes. Therefore, to achieve equality in the true sense, abolishes the practice of untouchability and makes it an offence punishable under law, and makes a provision for the abolition of titles and a prohibition on holding the office of profit.
To learn more about the right to equality, refer .
The right to freedom basically means exercising the chores of life without any unwarranted restriction. The right to freedom is a fundamental right granted under to . These rights were crucial to living a free human life, as promoted in the preamble of the Indian Constitution. To begin with, Article 19 guarantees six distinctive rights granted exclusively to citizens of India, including:
(i) Right to freedom of speech and expression [ ];
(ii) Right of peaceful assembly without arms [ ];
(iii) Right to form associations, unions or cooperative societies [ ];
(iv) Right to free movement in the territory of India [ ];
(v) Right to reside and settle within any part of Indian territorial border [ ]; and
(vi) Right to practise any lawful profession, trade, business, or occupation [ ].
All these above-mentioned rights to freedom are subjected to reasonable restrictions imposed from to on the grounds of sovereignty and integrity of India, security of the state, friendly relations with a foreign state, public order, decency, and morality, contempt of court, defamation, or Incitement to an offence.
Further, the right to freedom includes protection with respect to conviction for the offences. It is believed that a human is a free soul and can not be confined unless required by law to maintain the law and order of society. Therefore, of the Indian Constitution provides the following kinds of protections for personal liberty in the case of conviction for offences – (i) Protection against ex post facto laws; (ii) Protection against double jeopardy; and (iii) Protection against self-incrimination.
The important provision in the right to freedom is , which talks about the protection of life and personal liberty. The scope of Article 21 has grown wider while including within its ambit the right to privacy, the right to pollution-free water and air, the right against public hanging, the right against custodial death, the right to health and free medical aid, the right to shelter, the right to be under trial, right to go abroad, etc. It is pertinent to note here that the right to education is part of the right to freedom under inserted by the . It was so inserted because, without basic education, a sense of freedom cannot be inculcated in a human being.
The last right in this category is provided under , the right of protection against unlawful arrest and detention. This Article ensures that no person shall be arrested without informing him of the reason for the same. The arrested person deserves the right to consult a legal advisor, or he shall be produced before the magistrate within 24 hours of the arrest. Certain people are excluded from claiming these rights, such as enemy aliens & persons arrested for preventive detention.
To know more about the right to freedom, refer .
The right against exploitation is in the third category of fundamental rights given under and India was ruled and exploited by Brithishers for centuries and was known for bonded labourers and child labourers. To tackle the same, Article 23 strictly prohibits human trafficking, unpaid labour, or any kind of forced labour. To avoid any confusion regarding employment and labour. makes it clear that the state is free to impose compulsory service for public purposes without any discrimination on the grounds of religion, race, class, or caste. It is crucial to note here that contravention of this provision entails a penal action against the violator in accordance with the law. Further, Article 24 provides protection to children below 14 years of age against employment in any hazardous place, including a factory or mine.
To know more about rights against exploitation, refer .
India is a country of different faiths ranging from Hinduism, Islam, Christianity, Parsi, etc. Thus, it becomes very important to look after the issue and provide an environment of mutual respect and individual practice. of the Indian Constitution manifests freedom to profess, practice and propagate any religion and freedom of conscience, subject to public order, health, and morality. However, the religious rights in this Article can be restricted by an existing law or a new law.
Again, with due regard to public order, health and morality, under , every religious denomination has the right to:
Next, talks about the freedom from paying taxes in matters related to expenses for the promotion and maintenance of a religion or its denominations. Lastly, confers the right to freedom from being compelled to attend religious instruction in an educational institution wholly funded by the state. However, if that educational institution is established by a trust that has a basic requirement to impart religious knowledge, then such institutions are free to do so even if they are funded by the state. Again, a criterion for the consent of the person who has to take part in religious institutions is mandatory. Without his consent (or his guardian’s consent, if he is a minor), no person shall be compelled to take part in religious instruction in an education institution receiving aid from state funds.
To know more about the right to freedom of religion, refer .
India is a country of varied cultures, arts, languages, and customs. Therefore, in this category of rights, provides that every residing citizen of India who has a distinct language, script, or culture shall have the right to conserve the same. Further, regarding admission into educational institutions funded by the state, it is clear that no citizen will be denied admission only on the ground of religion, race, caste, or language.
provides that all religious and linguistic minorities in society have the right to establish and administer educational institutions of their liking. The state may grant aid to these minority educational institutions, but while doing so, they will not be discriminated against on the basis of religion or language. If the rank is to be acquired to establish such a minority educational institution, then the amount fixed against such acquisition shall not be arbitrary so as to abrogate or restrict the right guaranteed under this Article.
To know more about cultural and educational rights, refer .
A bunch of exclusive rights without the means to enforce them doesn’t make sense because a lack of deterrence will render these rights useless in the event of constant infringement. of the Indian Constitution gives the Supreme Court the power to issue directions, orders, or writs. There are five kinds of writs the apex court can issue to protect fundamental rights:
This power to issue the above mentioned writs is currently confined to the Supreme Court; however, it can be conferred on other courts of valid jurisdiction by a law passed by Parliament.
Further, in this category of fundamental rights, confers upon Parliament the power to modify rights under Part III in relation to members of the armed forces, persons employed in a bureau of intelligence or counterintelligence, and persons employed in a telecommunication system for the armed forces or intelligence bureau. This restriction is imposed on these people in order to maintain discipline and ensure the proper discharge of their duties. Along with this, rights in this part can also be restricted if martial law is imposed in any area in accordance with . Lastly, under , parliament (and not the state legislature) shall have the power to effectuate law in consonance with rights conferred in this Part.
To know more about the right to constitutional remedies, refer
In this part, a differentiation will be pointed out between fundamental rights and Constitutional rights on the basis of the extent of amendments. of the Indian Constitution deals with the ‘Amendment of the Constitution’. of the Constitution states that Parliament has the power to amend, vary, or repeal any provision of this Constitution by passing a Bill to that effect in both Houses of Parliament. Notably, a majority of 2/3rd of the members present and voting is required for such amendments. Such a passed amendment Bill becomes effective from the date on which the President gives his assent to the Bill.
It is known to all that the basic structure doctrine came into existence in the landmark case of . In this case, the Apex Court has given a list of constitutional subjects that fall under the purview of basic structure. The basic structure of the Constitution includes supremacy of the Constitution, unity and sovereignty of India, democratic, republican and secularism, federal character of the Constitution, separation of power, fundamental rights, etc. If any Constitutional amendment is found to be violative of the basic structure doctrine, it can be struck down by the Court.
Although Parliament is empowered to amend any part of the Constitution, when it comes to the amendability of fundamental rights, a cautious move is recommended so as not to interfere with the basic structure of the Constitution. The basic structure, inter alia, includes “various rights guaranteed in Part III of the Constitution along with the Directive Principle of State Policy (DPSP) under Part IV, which was incorporated in order to build a welfare State.”
In the case of , Sections 4 and 5 of the , were challenged as unconstitutional. Section 5 inserted a new Article 31D, which provided that a law made for the prohibition of anti-national activities shall not be challenged on the ground that it is violative of Articles 14, 19, and 31 (now repealed). The Supreme Court, in this case, has struck down Section 5 of the said amendment and held it to be unconstitutional because it was against the basic structure – the fundamental rights.
There are certain emergency situations when the rights guaranteed in the Indian Constitution need to be suspended. of the Constitution mentions the emergency provisions. There are three types of emergencies that might be imposed on the country: (i) National emergency; (ii) State emergency; (iii) Financial emergency.
During an emergency, Constitutional rights are not suspended as such. , which is a constitutional right, is not suspended. A person may approach the court for the enforcement of those rights that are not suspended, like the right to life under Article 21.
Once an emergency is declared by the President, fundamental rights are suspended for the period of the emergency. of the Constitution states that all the rights granted in Part III of the Constitution except (Article 20 and Article 21) are suspended during an emergency. Along with this, all proceedings in any court for the enforcement of such suspended rights are also suspended. Notably, Article 20 is about the rights of the person in relation to conviction in any case, and Article 21 is about rights to life and personal liberty.
Further, According to Article 32(4), fundamental rights can only be suspended in a situation when an emergency is declared by the President. It can not be suspended for any other reason not specified in the Constitution.
Rights without restriction can be dangerous as it may bring anarchy and absolutism. Therefore, it becomes crucial that certain restrictions be imposed upon the ‘rights’ be it fundamental rights, constitutional rights, or statutory rights. These restrictions are put into force in order to harmonise rights with other public objectives or to strike a balance between two conflicting rights.
Constitutional rights can be restricted via the formulation of new legislation and also with reasonable restrictions specified in the provision itself. For instance, the right to citizenship under of the Constitution is granted only to those who were domiciled in India for at least 5 years at the commencement of this Constitution or who have one or both parents from India. No other person can claim citizenship under of the Indian Constitution. However, the has added new ways to get Indian citizenship along with certain restrictions. It states that illegal migrants from Afghanistan, Bangladesh, and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians by religion shall be eligible for citizenship once he/she complete 5 years of residence in India. This right is not conferred on other neighbouring countries like Nepal, Bhutan, and Sri Lanka, nor is it applicable to people of the Islamic faith.
Though, the main purpose of imposing restrictions on rights is to balance out conflicting rights, in certain emergency situations, rights can be restricted or curtailed altogether in order to control the situation. For instance, the right granted in Article 19(1)(d),i.e., the. “right to freedom of movement,” was restricted during the time of the COVID-19 pandemic. As Article 19(5) clearly states that rights granted in sub-clause (d) can be restricted inter alia in the interest of the general public. Therefore, in order to protect the interests of the public at large and to contain the spread of the virus, a can be imposed in any part or whole of India as per of the .
Ubi jus ibi remedium is a Latin maxim that carries the meaning that where there are rights, there is always a remedy. A right without remedies ceases to exist because if there is no means to enforce a right upon its infringement, then the basic purpose of giving a right comes to an end.
For the enforcement of constitutional rights or to seek remedies in cases of denial of constitutional rights, a person may invoke Article 226 of the Constitution. A person whose rights are infringed may approach the High Court of competent jurisdiction to hear the matter and issue writs, directions or orders to any Government, authority, or other person who has so infringed the rights.
Where a fundamental right is encroached upon, the person whose right is encroached upon may approach the Supreme Court under Article 32 of the Indian Constitution. Article 32(1) states that for the enforcement of fundamental rights granted in Part III of the Constitution, a proceeding may be initiated in the Apex Court. The Supreme Court shall have the power to issue any of the five writs- habeas corpus, mandamus, prohibition, quo warranto, and certiorari along with any other appropriate order or direction needed for the enforcement of fundamental rights.
It should be noted that Article 32 can only be invoked for the enforcement of the rights guaranteed in Part III of the Constitution.
The right to vote is a constitutional right mentioned in of the Indian Constitution. of the Indian Constitution provides that there shall not be any discrimination on the ground of religion, race, caste, or sex with regard to eligibility to cast a vote in the election of Parliament or the state legislature. Further, provides the right to vote to every citizen of India who is 18 years of age or older, also known as adult suffrage.
provides that everyone has the right to property and this right can only be snatched away by the authority of law.
from Chapter V of of the Indian Constitution gives the constitutional rights of getting writs, orders, or directions in the form of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
Though the right to privacy is not directly a fundamental right, it has been added to the list by A wider judicial interpretation of the right to life and personal liberty under Article 21, as held in
Earlier, the right to education was part of the constitutional rights, but after the , it was added to the list of fundamental rights under Article 21A. Article 21A provides for free and compulsory education for every citizen under the age of 14 years,
The right to Internet is not an explicit part of the fundamental rights but it was included under the ambit of Article 21 in the case of .
It is very pertinent to know that fundamental rights cannot be completely differentiated from constitutional rights because fundamental rights are an integral part of the Indian Constitution and are incorporated in Part III of this supreme document. Thus, it can be said that all fundamental rights are constitutional rights, but all constitutional rights are not fundamental rights. However, because of the distinctive and peculiar nature of the rights in Part III of the Indian Constitution, they have an upper hand over the other rights mentioned in other parts of the Constitution. However, for the proper functioning of India as a welfare state, all the rights mentioned in the Constitution other than fundamental rights and constitutional rights are also equally important.
This question has mixed answers. It should be noted that fundamental rights are part of constitutional rights. All fundamental rights are constitutional rights,, but all constitutional rights are not fundamental rights. Therefore, these rights can’t be differentiated in the true sense. However, there are still chances for differentiation on the basis of their nature, position during emergency, extent of amendments, restriction, remedies, etc.
Though all the rights conferred in the Indian Constitution are equally important to maintain the equitable and humane conditions of societal living. However, amongst the plethora of rights incorporated in the Constitution, rights granted under Part III of the Constitution is an innate necessity for the dignified survival of humankind.
The post appeared first on .
Introduction
The concept of rights originated from the voice of protest against oppression perpetrated by the dominant group in society. Rights are meant to safeguard an individual from the irresponsible and arbitrary use of power by the state or the ruling class. The is one such supreme law of the land that contains various essential rights. It consists of fundamental rights, directive principles of state policy (DPSP), fundamental duties, etc.
The Indian Constitution is a unique legal document that enshrines a special kind of norm and stands at the top of the normative pyramid. Among every right incorporated in the Indian Constitution, fundamental rights are the most important, followed by other constitutional rights. Though fundamental rights are also part of constitutional rights, they are added in a different Part ( of the Constitution so as to give exclusive recognition to inherent human dignity and the equal and inalienable rights of all members of the human family. Such recognition is the foundation of freedom, justice, and peace in the world.
After independence, when India proceeded to become a welfare state, certain rights were considered fundamental for a dignified life. For instance, the right to equality without any discrimination, the right to freedom, etc. are essential rights for the dignified survival of an individual. However, the overall concept of rights is not limited to fundamental rights; there are other constitutional rights and legal rights.
Difference between constitutional rights and fundamental rights
Fundamental rights and constitutional rights are differentiated on the basis of their meaning, origin, scope, and classification. Following is the detailed differentiation between fundamental rights and constitutional rights on different grounds:
Meaning
Constitutional rights
Constitutional rights, as the name suggests, are a set of rights specifically stipulated in the Constitution of a nation. These are the rights conferred on every citizen of the country, as we have adopted this Constitution and the rights thereunder for ourselves. The Preamble of the Indian Constitution is proof of this fact and expressly states that “We, the people of India ……do hereby adopt, enact and give to ourselves this Constitution.”
Unlike fundamental rights, which are granted to everyone without any discrimination on the grounds of age, sex, place of birth, etc., constitutional rights are not granted to everyone. For instance, the right to vote is a constitutional right guaranteed under for Indian citizens over 18 years of age.
Fundamental rights
Part III of the Constitution of India provides for important fundamental rights. The Indian Constitution guarantees basic human rights and liberty to all the people of India by means of fundamental rights. Along with that, fundamental rights also contain welfare measures for the downtrodden sections of society in order to uplift them and help them stand on par with the privileged or common population. Women, children, socially and economically backward classes, , and other backward classes of society have been granted upliftment through guaranteeing fundamental rights and recognising historical injustice. For instance, the provision for reservation under and incorporates the provision for the abolition of untouchability, which had been practised in the rural settings of the country for ages.
Fundamental rights are the set of rights granted to citizens of the country as well as non-citizens i.e., foreigners in some cases. For instance, the fundamental right of equality under is for all, irrespective of their religion, race, caste, sex, or place of birth. The importance of fundamental rights can be assessed by the fact that even during a period of emergency when all rights under the Constitution are suspended, only two fundamental rights persist: (i) the right to life and personal liberty under ; and (ii) right of protection with respect to a conviction against the state under .
In the case of , a family was travelling from Noida to Sahjahanpur, where they were waylaid by goons who then looted and gang raped the daughter and wife of the petitioner. While deciding on the question of whether fundamental rights can be enforced against private parties other than the state or its instrumentalities, the constitutional bench of the Supreme Court has affirmatively held that the original thinking of this Court that these rights can be enforced only against the state changed over a period of time. “The transformation was from “State” to “Authorities” to “instrumentalities of State” to “agency of the Government” to “impregnation with Governmental character” to “enjoyment of monopoly status conferred by State” to “deep and pervasive control” to the “nature of the duties/functions performed”.
Origin of the concept
Constitutional rights
In the year 1215, the then King John of England signed a Charter which is known as . The Magna Carta, or “Great Charter,” has great historical significance and influence in the development of the rules of constitutional law. The first codified Constitution of the world was the which was written in 1787 and came into force in 1788. It consisted of a Preamble, 7 Articles, a closing endorsement along with Bill of Rights.
Since constitutional rights are an after-effect of the Indian Constitution, their origin can be understood by the origin of the Constitution. All this starts with the published in 1928 as a result of the .
The Constitution of India has been assembled from borrowed features from British India’s legislation and the Constitution of other countries. Statutes such as the , the , and , the and the played a vital role in framing the Constitution we have now. It was the constituent assembly that drafted the Indian Constitution, consisting of all the rights, in almost 3 years. Since then, the people of India have enjoyed numerous constitutional rights, including civil and political rights, fundamental rights, social rights, and economic rights.
Fundamental rights
The of fundamental rights can be traced back to the 17th century with the introduction of theories that enumerated the concept of basic, inalienable natural rights. It was believed that, by virtue of being humans, we are all granted some natural and inseparable rights.
However, the modern trend of guaranteeing everyone basic fundamental rights can be traced back to 1789, when the first ever Constitution of the United States of America (USA) was drafted. The U.S. Constitution was the first modern constitution that gave the world a solid notion of human rights by incorporating them into the fundamental law of the land and making them justiciable and enforceable through the instrumentality of the Courts through the .
Scope
Constitutional rights
In a way, constitutional rights do not have a wider scope with regard to applicability and judicial interpretation. However, when it comes to the range of rights, it has a wider scope in the sense that it includes a wide range of rights and freedoms.
It can be seen from the following image that fundamental rights fall within the ambit of constitutional rights. The Indian Constitution contains certain rights that are known as constitutional rights. Further, there is a specific Part of the Constitution that guarantees basic rights known as fundamental rights.
Fundamental rights
Fundamental rights have a broader scope than normal constitutional rights. All laws in India are subject to judicial interpretation, and the higher judiciary has, from time to time, worked to broaden the scope and applicability of the fundamental rights. clearly states that the state is not empowered to make or formulate any law that derogates from the fundamental rights guaranteed under Part III of the Constitution. If state make such laws, they would be void to the extent that the particular law derogates from a fundamental right. This Article is also applicable to the laws that were passed before the commencement of the Constitution. So far, the law made before the commencement of the Constitution is inconsistent with the fundamental right; to that extent, it would be void. In this Article, the term ‘law’ has a very wide definition, which includes ordinance, order, bye-law, rule, regulation, notification, custom, or usages in force within the territory of India. Therefore, any statute, rule, regulation, or amendment that, even in the slightest way, contravenes the basic fundamental rights can be abrogated with immediate effects.
As held in the recent notable case of , also known as the Sabarimala case, where the question was raised on the practice of prohibiting women from entering the temple if they belong to the age group of 10-50. This practice was backed by Rule 3(b) of the which stated the right of Hindu denominations to exclude women from places of worship if it is done on the basis of customs. The Supreme Court, in this case, has held that this practice is violative of the right to equality under Article 14, the right against discrimination under Article 15, the right to liberty under Article 21, and the right to religion under . Consequently, Rule 3(b) of the Kerala Hindu Places of Public Worship Act, 1965 was declared unconstitutional.
Not only the laws of India, but if any Act or omission on the part of the state contravenes the fundamental rights given in Part III of the Indian Constitution. Please note that state here means the state defined under which includes the Central Government, State Governments, both Houses of Parliament, and the Legislative Assembly of each state, along with all local or other authorities within the territory of India or under the control of the Government of India.
Classification
Constitutional rights
Constitutional rights can be roughly classified into four categories namely, (i) civil rights; (ii) political rights; (iii) economic rights; and (iv) social rights
Civil rights
Civil rights are those rights, powers, immunities, and privileges that are conferred on citizens of any nation by virtue of being citizens. Civil rights are given to everyone regardless of their gender, class, caste, creed, race, ethnicity, religion, nationality, or any other personal character. It is being conferred to all the citizens residing within the territorial boundaries of a country for their peaceful and dignified existence.
In the case of , a PIL was filed in the Apex Court on the basis of news reports of a mass of undertrials being kept in the jails of Bihar for the period extending the actual imprisonment that might be awarded. The issue of contention in this case was whether the right to speedy trials is part of Article 21. A single judge bench of P. N. Bhagwati has held that “the State is under a constitutional mandate to ensure speedy trial”. Further, the Court held that the right to speedy trials is part of Article 21 as well as Article 14, which is about equal justice, and is also a compulsion of the constitutional directive embodied in .
Certain examples of civil rights guaranteed under the Indian Constitution, inter alia, include:
- Right to vote ( and )
Every citizen of the country who is 18 years of age or older will have the right to vote without any discrimination on the basis of religion, race, caste, or sex.
- Right to a fair trial and speedy ( and )
The provisions of Article 20 grant every citizen the right to a fair trial. In other words, rights against self-incrimination, rights against ex-post facto laws, and rights against double jeopardy. To learn more about a fair trial, refer .
- The right to be part of government services ( );
- The right to public education ( and ); and
- The right to use public facilities ( )
To know more about civil rights under the Indian Constitution, refer
Political rights
The rights by which citizens of a country participate in the political agendas of the country, including that of the management of government, are known as political rights. Some of the important political rights granted under the Indian Constitution include the right to criticise the government, the right to vote, the right to contest elections, the right to public offices, the right to form political parties, the reservation of seats for certain classes in Parliament and legislative assemblies, etc.
Economic rights
Economic rights are those rights guaranteed under the Constitution to ensure the economic security of every citizen. Economic rights include the right to work, the right to a good working environment, the right to proper wages, the right to food, etc.
To learn more about economic rights under the Constitution, refer .
Social rights
Social rights are those rights that are important to fulfil societal demands and promote social inclusion and solidarity. Social rights under the Indian Constitution include right to healthcare services, right to access to social protection, right to employment, right to free legal aid, social rights for minority social groups, etc.
Fundamental rights
Fundamental rights can be categorised into six classes-
Right to equality (Article 14-18)
The right to equality means treating everyone equally without any favouritism or discrimination towards any person or group. It means equality before the law and equal protection of the law under of the Indian Constitution. The interpreted meaning of the right to equality is “equality among equals” i.e., people with equal social and economic status must be treated equally. Therefore, any kind of discrimination on the grounds of religion, race, caste, sex, or place of birth is prohibited under of the Constitution. Further, vouchsafes for equality of opportunity for all citizens in the matter of public employment, in other words, there shall be no discrimination on the grounds of religion, sex, descent, race, caste, or place of birth in the matter of employment opportunity in public offices. However, this Article creates a separate room for the reservation of socially and economically backwards classes of citizens.
The right to equality is incomplete without breaking the shackles of the age-old practice of untouchability and differentiation on the basis of the elite and lower classes. Therefore, to achieve equality in the true sense, abolishes the practice of untouchability and makes it an offence punishable under law, and makes a provision for the abolition of titles and a prohibition on holding the office of profit.
To learn more about the right to equality, refer .
Right to freedom (Article 19-22)
The right to freedom basically means exercising the chores of life without any unwarranted restriction. The right to freedom is a fundamental right granted under to . These rights were crucial to living a free human life, as promoted in the preamble of the Indian Constitution. To begin with, Article 19 guarantees six distinctive rights granted exclusively to citizens of India, including:
(i) Right to freedom of speech and expression [ ];
(ii) Right of peaceful assembly without arms [ ];
(iii) Right to form associations, unions or cooperative societies [ ];
(iv) Right to free movement in the territory of India [ ];
(v) Right to reside and settle within any part of Indian territorial border [ ]; and
(vi) Right to practise any lawful profession, trade, business, or occupation [ ].
All these above-mentioned rights to freedom are subjected to reasonable restrictions imposed from to on the grounds of sovereignty and integrity of India, security of the state, friendly relations with a foreign state, public order, decency, and morality, contempt of court, defamation, or Incitement to an offence.
Further, the right to freedom includes protection with respect to conviction for the offences. It is believed that a human is a free soul and can not be confined unless required by law to maintain the law and order of society. Therefore, of the Indian Constitution provides the following kinds of protections for personal liberty in the case of conviction for offences – (i) Protection against ex post facto laws; (ii) Protection against double jeopardy; and (iii) Protection against self-incrimination.
The important provision in the right to freedom is , which talks about the protection of life and personal liberty. The scope of Article 21 has grown wider while including within its ambit the right to privacy, the right to pollution-free water and air, the right against public hanging, the right against custodial death, the right to health and free medical aid, the right to shelter, the right to be under trial, right to go abroad, etc. It is pertinent to note here that the right to education is part of the right to freedom under inserted by the . It was so inserted because, without basic education, a sense of freedom cannot be inculcated in a human being.
The last right in this category is provided under , the right of protection against unlawful arrest and detention. This Article ensures that no person shall be arrested without informing him of the reason for the same. The arrested person deserves the right to consult a legal advisor, or he shall be produced before the magistrate within 24 hours of the arrest. Certain people are excluded from claiming these rights, such as enemy aliens & persons arrested for preventive detention.
To know more about the right to freedom, refer .
Right against exploitation (Article 23-24)
The right against exploitation is in the third category of fundamental rights given under and India was ruled and exploited by Brithishers for centuries and was known for bonded labourers and child labourers. To tackle the same, Article 23 strictly prohibits human trafficking, unpaid labour, or any kind of forced labour. To avoid any confusion regarding employment and labour. makes it clear that the state is free to impose compulsory service for public purposes without any discrimination on the grounds of religion, race, class, or caste. It is crucial to note here that contravention of this provision entails a penal action against the violator in accordance with the law. Further, Article 24 provides protection to children below 14 years of age against employment in any hazardous place, including a factory or mine.
To know more about rights against exploitation, refer .
Right to freedom of religion (Article 25-28)
India is a country of different faiths ranging from Hinduism, Islam, Christianity, Parsi, etc. Thus, it becomes very important to look after the issue and provide an environment of mutual respect and individual practice. of the Indian Constitution manifests freedom to profess, practice and propagate any religion and freedom of conscience, subject to public order, health, and morality. However, the religious rights in this Article can be restricted by an existing law or a new law.
Again, with due regard to public order, health and morality, under , every religious denomination has the right to:
- establish and maintain institutions for the purpose of religion or charity;
- manage its religious affairs in the way they want;
- own and acquire property of movable or immovable nature under the name of the institution; and
- administer such property in accordance with the law.
Next, talks about the freedom from paying taxes in matters related to expenses for the promotion and maintenance of a religion or its denominations. Lastly, confers the right to freedom from being compelled to attend religious instruction in an educational institution wholly funded by the state. However, if that educational institution is established by a trust that has a basic requirement to impart religious knowledge, then such institutions are free to do so even if they are funded by the state. Again, a criterion for the consent of the person who has to take part in religious institutions is mandatory. Without his consent (or his guardian’s consent, if he is a minor), no person shall be compelled to take part in religious instruction in an education institution receiving aid from state funds.
To know more about the right to freedom of religion, refer .
Cultural and educational rights (Article 29-30)
India is a country of varied cultures, arts, languages, and customs. Therefore, in this category of rights, provides that every residing citizen of India who has a distinct language, script, or culture shall have the right to conserve the same. Further, regarding admission into educational institutions funded by the state, it is clear that no citizen will be denied admission only on the ground of religion, race, caste, or language.
provides that all religious and linguistic minorities in society have the right to establish and administer educational institutions of their liking. The state may grant aid to these minority educational institutions, but while doing so, they will not be discriminated against on the basis of religion or language. If the rank is to be acquired to establish such a minority educational institution, then the amount fixed against such acquisition shall not be arbitrary so as to abrogate or restrict the right guaranteed under this Article.
To know more about cultural and educational rights, refer .
Right to constitutional remedies (Article 32-35)
A bunch of exclusive rights without the means to enforce them doesn’t make sense because a lack of deterrence will render these rights useless in the event of constant infringement. of the Indian Constitution gives the Supreme Court the power to issue directions, orders, or writs. There are five kinds of writs the apex court can issue to protect fundamental rights:
- Habeas Corpus
- Mandamus
- Prohibition
- Quo Warranto
- Certiorari
This power to issue the above mentioned writs is currently confined to the Supreme Court; however, it can be conferred on other courts of valid jurisdiction by a law passed by Parliament.
Further, in this category of fundamental rights, confers upon Parliament the power to modify rights under Part III in relation to members of the armed forces, persons employed in a bureau of intelligence or counterintelligence, and persons employed in a telecommunication system for the armed forces or intelligence bureau. This restriction is imposed on these people in order to maintain discipline and ensure the proper discharge of their duties. Along with this, rights in this part can also be restricted if martial law is imposed in any area in accordance with . Lastly, under , parliament (and not the state legislature) shall have the power to effectuate law in consonance with rights conferred in this Part.
To know more about the right to constitutional remedies, refer
Amendability
In this part, a differentiation will be pointed out between fundamental rights and Constitutional rights on the basis of the extent of amendments. of the Indian Constitution deals with the ‘Amendment of the Constitution’. of the Constitution states that Parliament has the power to amend, vary, or repeal any provision of this Constitution by passing a Bill to that effect in both Houses of Parliament. Notably, a majority of 2/3rd of the members present and voting is required for such amendments. Such a passed amendment Bill becomes effective from the date on which the President gives his assent to the Bill.
Constitutional rights
It is known to all that the basic structure doctrine came into existence in the landmark case of . In this case, the Apex Court has given a list of constitutional subjects that fall under the purview of basic structure. The basic structure of the Constitution includes supremacy of the Constitution, unity and sovereignty of India, democratic, republican and secularism, federal character of the Constitution, separation of power, fundamental rights, etc. If any Constitutional amendment is found to be violative of the basic structure doctrine, it can be struck down by the Court.
Fundamental rights
Although Parliament is empowered to amend any part of the Constitution, when it comes to the amendability of fundamental rights, a cautious move is recommended so as not to interfere with the basic structure of the Constitution. The basic structure, inter alia, includes “various rights guaranteed in Part III of the Constitution along with the Directive Principle of State Policy (DPSP) under Part IV, which was incorporated in order to build a welfare State.”
In the case of , Sections 4 and 5 of the , were challenged as unconstitutional. Section 5 inserted a new Article 31D, which provided that a law made for the prohibition of anti-national activities shall not be challenged on the ground that it is violative of Articles 14, 19, and 31 (now repealed). The Supreme Court, in this case, has struck down Section 5 of the said amendment and held it to be unconstitutional because it was against the basic structure – the fundamental rights.
Position during emergency
There are certain emergency situations when the rights guaranteed in the Indian Constitution need to be suspended. of the Constitution mentions the emergency provisions. There are three types of emergencies that might be imposed on the country: (i) National emergency; (ii) State emergency; (iii) Financial emergency.
Constitutional rights
During an emergency, Constitutional rights are not suspended as such. , which is a constitutional right, is not suspended. A person may approach the court for the enforcement of those rights that are not suspended, like the right to life under Article 21.
Fundamental rights
Once an emergency is declared by the President, fundamental rights are suspended for the period of the emergency. of the Constitution states that all the rights granted in Part III of the Constitution except (Article 20 and Article 21) are suspended during an emergency. Along with this, all proceedings in any court for the enforcement of such suspended rights are also suspended. Notably, Article 20 is about the rights of the person in relation to conviction in any case, and Article 21 is about rights to life and personal liberty.
Further, According to Article 32(4), fundamental rights can only be suspended in a situation when an emergency is declared by the President. It can not be suspended for any other reason not specified in the Constitution.
Restrictive clauses
Rights without restriction can be dangerous as it may bring anarchy and absolutism. Therefore, it becomes crucial that certain restrictions be imposed upon the ‘rights’ be it fundamental rights, constitutional rights, or statutory rights. These restrictions are put into force in order to harmonise rights with other public objectives or to strike a balance between two conflicting rights.
Constitutional rights
Constitutional rights can be restricted via the formulation of new legislation and also with reasonable restrictions specified in the provision itself. For instance, the right to citizenship under of the Constitution is granted only to those who were domiciled in India for at least 5 years at the commencement of this Constitution or who have one or both parents from India. No other person can claim citizenship under of the Indian Constitution. However, the has added new ways to get Indian citizenship along with certain restrictions. It states that illegal migrants from Afghanistan, Bangladesh, and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians by religion shall be eligible for citizenship once he/she complete 5 years of residence in India. This right is not conferred on other neighbouring countries like Nepal, Bhutan, and Sri Lanka, nor is it applicable to people of the Islamic faith.
Fundamental rights
Though, the main purpose of imposing restrictions on rights is to balance out conflicting rights, in certain emergency situations, rights can be restricted or curtailed altogether in order to control the situation. For instance, the right granted in Article 19(1)(d),i.e., the. “right to freedom of movement,” was restricted during the time of the COVID-19 pandemic. As Article 19(5) clearly states that rights granted in sub-clause (d) can be restricted inter alia in the interest of the general public. Therefore, in order to protect the interests of the public at large and to contain the spread of the virus, a can be imposed in any part or whole of India as per of the .
Remedies upon denial of rights
Ubi jus ibi remedium is a Latin maxim that carries the meaning that where there are rights, there is always a remedy. A right without remedies ceases to exist because if there is no means to enforce a right upon its infringement, then the basic purpose of giving a right comes to an end.
Constitutional rights
For the enforcement of constitutional rights or to seek remedies in cases of denial of constitutional rights, a person may invoke Article 226 of the Constitution. A person whose rights are infringed may approach the High Court of competent jurisdiction to hear the matter and issue writs, directions or orders to any Government, authority, or other person who has so infringed the rights.
Fundamental rights
Where a fundamental right is encroached upon, the person whose right is encroached upon may approach the Supreme Court under Article 32 of the Indian Constitution. Article 32(1) states that for the enforcement of fundamental rights granted in Part III of the Constitution, a proceeding may be initiated in the Apex Court. The Supreme Court shall have the power to issue any of the five writs- habeas corpus, mandamus, prohibition, quo warranto, and certiorari along with any other appropriate order or direction needed for the enforcement of fundamental rights.
It should be noted that Article 32 can only be invoked for the enforcement of the rights guaranteed in Part III of the Constitution.
Examples
Constitutional rights
Right to vote (Article 325 – 326)
The right to vote is a constitutional right mentioned in of the Indian Constitution. of the Indian Constitution provides that there shall not be any discrimination on the ground of religion, race, caste, or sex with regard to eligibility to cast a vote in the election of Parliament or the state legislature. Further, provides the right to vote to every citizen of India who is 18 years of age or older, also known as adult suffrage.
Right to property (Article 300A)
provides that everyone has the right to property and this right can only be snatched away by the authority of law.
Right to approach High Court for violating fundamental rights or any other legal rights
from Chapter V of of the Indian Constitution gives the constitutional rights of getting writs, orders, or directions in the form of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
Fundamental rights
Right to privacy
Though the right to privacy is not directly a fundamental right, it has been added to the list by A wider judicial interpretation of the right to life and personal liberty under Article 21, as held in
Right to education
Earlier, the right to education was part of the constitutional rights, but after the , it was added to the list of fundamental rights under Article 21A. Article 21A provides for free and compulsory education for every citizen under the age of 14 years,
Right to Internet
The right to Internet is not an explicit part of the fundamental rights but it was included under the ambit of Article 21 in the case of .
Differences between constitutional rights and fundamental rights
| Basis | Fundamental rights | Constitutional Rights |
Meaning | Fundamental rights are a set of rights which are innate necessities to live a dignified human life. | Constitutional rights are the rights granted to the people of India in the Indian Constitution. It also includes fundamental rights. |
| Waiver of rights | A waiver is a process of knowingly abandoning or relinquishing a given right. Waiver of fundamental rights is not allowed as first held in . | In India, constitutional rights cannot be waived. However, the United States Supreme Court has allowed the waiver of rights. [ ] |
| Amendability | Fundamental rights can be amended by Constitutional amendment provided that the basic structure of the constitution remains intact. | Constitutional rights can be amended by a constitutional amendment, unlike legal rights which can be amended by ordinary amendment. |
| Position during emergency | All fundamental rights are suspended during an emergency except Article 20 and Article 21. As per Article 32(4), other than those conditions prescribed under the constitution i.e. emergency provision, fundamental rights can not be suspended on any other ground. | All constitutional rights are not suspended during the emergency period. |
| Restriction | There are certain reasonable restrictions imposed upon the fundamental rights which are embodied in that particular Article. Eg- Article 21 guarantees the right to life and personal liberty but is subject to “procedure established by law”. | Apart from those specified in the Article, constitutional rights are also subjected to the statutory limitations imposed upon the will of the House of People.Eg- The right to property under Article 300A can be snatched ‘by the authority of law’. This could not have been possible if it were a fundamental right. |
| Remedies upon denial of rights | In case, any person is denied rights under Part III of the constitution he/she may approach the Supreme Court under Article 32 or the High Court Under Article 226. | Upon infringement of any Constitutional right also one may approach either the High Court under Article 226. |
| Example | Examples of fundamental rights include: Right to Privacy Right to basic educationRight to seek constitutional remedies | Examples of constitutional rights include: Right to propertyLegislative privilegesReservation of seats for certain classes in the House of People |
Conclusion
It is very pertinent to know that fundamental rights cannot be completely differentiated from constitutional rights because fundamental rights are an integral part of the Indian Constitution and are incorporated in Part III of this supreme document. Thus, it can be said that all fundamental rights are constitutional rights, but all constitutional rights are not fundamental rights. However, because of the distinctive and peculiar nature of the rights in Part III of the Indian Constitution, they have an upper hand over the other rights mentioned in other parts of the Constitution. However, for the proper functioning of India as a welfare state, all the rights mentioned in the Constitution other than fundamental rights and constitutional rights are also equally important.
Frequently Asked Questions (FAQs)
Are fundamental rights and constitutional rights different?
This question has mixed answers. It should be noted that fundamental rights are part of constitutional rights. All fundamental rights are constitutional rights,, but all constitutional rights are not fundamental rights. Therefore, these rights can’t be differentiated in the true sense. However, there are still chances for differentiation on the basis of their nature, position during emergency, extent of amendments, restriction, remedies, etc.
What is the basic difference between fundamental rights and constitutional rights?
Though all the rights conferred in the Indian Constitution are equally important to maintain the equitable and humane conditions of societal living. However, amongst the plethora of rights incorporated in the Constitution, rights granted under Part III of the Constitution is an innate necessity for the dignified survival of humankind.
References
- M.P. Jain Indian Constitutional Law, Wadhwa Publication Nagpur, 5th Edn. 2003, Rep 2004
- .
The post appeared first on .