This article has been written by
, a student of the BBA.LLB. programme at the Indian Institute of Management, Rohtak. This article briefly discusses fundamental rights and legal rights. We also discuss in detail the difference between legal rights and fundamental rights, the laws they are governed by, and landmark cases, along with their key highlights.
It has been published by Rachit Garg.
The standard of permissible behaviour or action within a limited sphere is called a right. They are the actions of any individual in society that the law has permitted. Rights play an important role in the lives of all members of society. They act as pillars of freedom, respect, and equality. They form the basis of creating a just society where everyone has the power to protect and empower themselves. Apart from these, rights are a framework that protects an individual from discrimination, oppression, and abuse. In a society where people are well aware of their rights, there will always be growth, justice, and a constant effort towards the betterment of humanity.
The basic difference between fundamental rights and legal rights is that the former are recognised and protected by the Constitution or statute of the country from which they originate, and the latter is conferred upon people by specific laws and regulations that are limited by legislation. We shall see the difference between the two in more depth now.
Fundamental rights are the fundamental, inherent human rights that have been recognised, safeguarded, and included in the . All citizens are entitled to these fundamental rights, regardless of their nationality, ethnicity, gender, religion, or other traits.
Legal rights, on the other hand, are any actions or behaviour of a person that the law permits. They are given to an individual by the country or the government to enjoy liberty. These rights are not universal, and they vary from country to country, state to state, and from time to time. Legal rights cover the common features of all rights, i.e., legal, moral, etc.
The origin of fundamental rights can be traced back to the time of recognition of the inherent interests of Individuals and the need to protect their essential liberties. The political and cultural movements that supported individual liberties are the origins of the idea of basic rights. Important turning points were the in 1789, the in 1689, and the issued by King John of England in 1215. The 1948 and subsequent international human rights agreements have strengthened it in modern times.
Since the 1950 draft of the Indian Constitution, basic rights have existed in India. A detailed list of basic rights was incorporated into the Constitution, which was influenced by international human rights ideas.
The origin of legal rights can be traced back to the evolution of legal frameworks, and social order is where legal rights are. The creation of laws, rules, and legal frameworks within a certain jurisdiction results in the emergence of legal rights. By passing laws or codes, they are often established and acknowledged by legislative bodies like parliaments or congresses. Depending on the country and legal system, the exact origins of legal rights may change. Legal rights may occasionally arise from constitutional clauses or charters, but more frequently, they are formed through common law norms, court rulings, or international treaties and conventions. Social, cultural, and political considerations, historical changes, and the continuous interpretation and execution of the law all have an impact on how legal rights develop.
The scope of fundamental and legal rights has been further categorised under several heads.
The scope of fundamental rights that have been granted to every citizen in a particular jurisdiction encompasses several rights and covers the following
The freedoms and rights of individuals are protected by a number of civil liberties. These include liberty, privacy, and the freedoms of speech, expression, religion, and assembly. These rights guarantee the people the ability to express themselves, exercise their faith, gather in peace, and live their lives as they see fit without suffering unjustified interference.
Political rights ensure that people can participate in the political process. They consist of the freedom to participate in politics, to associate with political groups, and to run for public office. These rights give people the ability to participate in politics, join organisations, and hold public office, all of which support the democratic operation of a society.
The focus of social and economic rights is on the welfare and socioeconomic circumstances of the person. These rights include the right to shelter, a fair quality of life, social security, healthcare, and education. They want to provide everyone in society with equal chances, opportunities to deal with injustices, and advances in social welfare.
Cultural identity, language, customs, and legacy are all protected under cultural rights. These rights guarantee the protection and development of various cultural expressions without prejudice. Cultural rights support variety, inclusion, and the improvement of both collective and personal experiences.
Legal rights can be categorised under the following broad headings.
International treaties and human rights concepts may also be incorporated into legal systems, expanding the range of legal rights to cover essential human rights, including the right to life, liberty, equality, and non-discrimination. The majority of rights are covered by human rights since they are basic rights guaranteed to all people by the advancement of humanity.
These rights cover both tangible assets (land, buildings, and goods) and intangible assets (intellectual property), and they pertain to the ownership, use, and protection of property in general. The was formerly a fundamental right, but it ceased to be so in 1978 when the to the Indian Constitution was adopted.
These rights are specifically related to economic well-being and financial security. These rights include the right to a proper standard of living, The right to adequate food, housing, water, and sanitation, and the right to work.
These rights protect people’s rights and obligations in contractual relations by governing legal agreements and contractual commitments between parties. This has its roots in the laissez-faire or minimal government intervention doctrine.
These rights create legal duties and safeguards within familial connections and deal with issues including marriage, divorce, child custody, adoption, and inheritance.
To understand the applicability of the fundamental and legal rights, it is important to first look at their types and then make out their application.
There are six fundamental rights given by the Constitution of India, which are-
The right to Equality is given in the Indian Constitution in Articles 14, 15, 16, 17, and 18.
Equality before the law and equal protection under the law are guaranteed under of the Indian Constitution. It bars discrimination based on racial, ethnic, caste, sexual, or geographic origin. The Supreme Court upheld the right to equality and against discrimination by decriminalising homosexuality in the landmark decision of Navtej Singh Johar v. Union of India (2018).
Discrimination on the basis of religion, ethnicity, caste, sex, or place of birth is forbidden under . The Supreme Court invalidated a government decision that offered caste-based reservations in educational institutions in the because it contravened Article 15 of the Constitution. However, the Constitution was eventually changed to provide reserves for economically and socially disadvantaged groups.
On the subject of public employment, equality of opportunity is guaranteed by . The Supreme Court established the legality of reservations in public employment, up to a maximum of 50%, in the case of
Untouchability is outlawed, and its practice is forbidden in all forms under . The Supreme Court determined that manual scavenging constituted untouchability and was a violation of Article 17 in the case of .
forbids the state from bestowing any titles, with the exception of academic and military accomplishments. The Supreme Court affirmed the validity of the National Awards, including the Padma Awards, in the case of since they were not titles as defined by Article 18.
Six freedoms are guaranteed by – speech and association, assembly, movement, dwelling, and profession. The Supreme Court invalidated Section , in the landmark case of because it infringed on the right to freedom of speech and expression granted by Article 19(1)(a).
Protection from double jeopardy, arbitrary and disproportionate punishment, and self-incrimination are all provided under . The Supreme Court ruled in that the use of narco-analysis, polygraph, and brain mapping tests on defendants violated their Article 20(3) protection against self-incrimination.
The right to life and personal liberty is protected under . The Supreme Court ruled in the illustrious case of that the right to life and personal liberty includes the right to live with dignity. , another significant decision, saw the Supreme Court proclaim the right to privacy to be a basic right protected by Article 21.
Protection against arbitrary action by the state, arrest, and imprisonment is provided under . In the case of , the Supreme Court established rules for the police to adhere to while conducting arrests in order to prevent violence in custody and guarantee the preservation of the detained person’s rights.
Forced labour and human trafficking are prohibited by . The Supreme Court ruled in that the state was required to take the appropriate action to stop bonded labour and rehabilitate the victims.
attempts to safeguard children’s rights to education and a healthy upbringing while also safeguarding them against exploitation. Children under the age of 14 are not allowed to work in factories, mines, or other dangerous occupations.
The right to freely profess, practice, and spread one’s religion is guaranteed under . This privilege is constrained by laws governing basic rights, public morals, and health. The Supreme Court ruled in that secularism is a fundamental aspect of the Indian Constitution and that the state has no religion. The Court highlighted that the state must not favour any one religion and must treat all religions equally.
grants religious denominations the right to establish and maintain institutions for religious and charitable purposes, manage their own affairs in matters of religion, and own and acquire movable and immovable property. The Supreme Court determined that the term “religion” must be given a broad and liberal construction and that religious acts are protected under Article 26 in the case of .
According to , the state cannot impose any taxes to support or further any one religion or religious sect. The Supreme Court ruled that the levy of a tax on a Jain temple for the maintenance of a Hindu temple violated Article 27 in the case of .
forbids religious instruction and worship in establishments of higher learning completely supported by public funds. However, this clause does not apply to state-run institutions that were founded under a trust or endowment that mandates religious education.
The Supreme Court ruled that the inclusion of religious instruction in government schools did not violate Article 28 in the famous case of .
guarantees minorities’ rights to preserve their own language, script, or culture in order to safeguard their interests. In the landmark decision of , the Supreme Court ruled that it was against Article 29 to require only Punjabi as the medium of instruction in educational institutions.
states that minorities have the right to establish and govern educational institutions of their choice. In the case of , the apex court held that the right to establish educational institutions and administer them is allowed as long as it is done within reasonability. It is not an absolute right and is subject to reasonable restrictions.
, which guaranteed the right to property, was repealed by the 44th Amendment Act 1978. It used to be a fundamental right initially. The right to property is now a legal right under of the Constitution.
states the right to approach the Supreme Court for the enforcement of fundamental rights. Individuals have the right to go directly to the Supreme Court for the enforcement of their basic rights under Article 32 of the Indian Constitution. It serves as a shield against the state and private entities violating a person’s rights and is seen as a basic right in and of itself. It is considered the heart and soul of the Indian Constitution. In the landmark case of Bandhua Mukti Morcha v. Union of India (1984), the Supreme Court held that public interest litigation could be filed for raising child labour-related issues and putting issues conspicuously on the government’s agenda, as this instrument protects the child against exploitation and protects their rights.
Legal rights are the wider category that contains all the other types of rights under it. To understand it in terms of Venn diagrams, it can be said that legal rights are the outer main set, and all the other rights are subsets of it. The applicability can be understood with the help of an example and case for each.
Every citizen of India is entitled to human rights, such as the rights to life, liberty, equality, and non-discrimination. Due to India’s adherence to numerous international human rights treaties and conventions, these rights are recognised both nationally and globally through constitutional provisions. Other than fundamental rights, it also covers a range of other rights.
Prior to 1978, India recognised the right to property as a fundamental freedom, although that recognition was later revoked. However, other laws and legal frameworks, such as the Indian Constitution and particular property-related legislation, continue to preserve property rights. Legislations like the , , , , , and many more.
All citizens in India are entitled to economic rights, such as the right to a decent quality of living, sufficient food, housing, water, and sanitation, as well as rights at work. To ensure economic security and well-being, the government has enacted a number of laws, policies, and welfare programs to defend these rights. Some of these laws are the (MGNREGA), by the Government of India.
, which is valid in India, governs contractual rights. By defining the rights and obligations of parties involved in contractual interactions and outlining remedies in the event of a contract breach, this act creates the legal basis for engaging in contracts. A few other legislations covered under the head are the , The and the
Family rights pertain to different aspects of family ties, such as marriage, divorce, child custody, adoption, and inheritance, and are applicable to persons within the Indian legal system. Personal rules based on a person’s religion or cultural practices control these rights. For instance, and even some secular laws like Special Marriage Act 1955, and many more.
Fundamental rights are the basic human rights that are recognised universally and are inherent to all individuals regardless of their nationality, race, religion, or sex. Examples include the right to life, liberty, and security of the person; the freedom of religion, thinking, and conscience; and the freedom of speech.
Legal rights are those that are guaranteed to citizens under the laws of a country. The right to a fair trial, the right to vote, and the right to possess property are a few examples.
Fundamental rights are infringed when they are violated in some way. This can manifest itself primarily as discrimination. For instance, a person’s right to equality is infringed when they are treated differently on the basis of their colour, religion, or gender. A person’s right to freedom of speech and expression is also violated when it is restricted or when they are punished for expressing their opinions. The rights to life and personal freedom may be violated in instances of wrongful detention, torture, or executions without trial.
A violation of legal rights occurs when an individual’s rights, as protected by law, are infringed upon. This could include instances such as unlawful detention, denial of a fair trial, discrimination based on race or gender, or infringement of property rights. Such violations can lead to legal action and penalties for the offender.
Whenever there is a breach of a fundamental right of an individual, they can seek remedy in High Courts or the Supreme Court and file for one of these five writs which protect the interest of the citizens. These writs are as follows-
Habeas Corpus means “you shall have the body”. This writ is used to most effectively help an illegally detained person. By this writ, the court asks the authority for the reason for their detention, and in case of failure by the detaining authority to provide any valid reason for detention, the person is released by the court with immediate effect. In the case of the writ of Habeas Corpus was made regarding the inhuman treatment of the jail inmates and the Supreme Court accepted the letter and the writ was issued.
Certiorari is a corrective writ. It aims to correct any error by the lower court. This writ is issued mostly to the lower courts. Certiorari is used by the higher courts when the inferior courts have acted in excess of their power and excess of jurisdiction. It can also be issued when the inferior court finds out that there is a violation of principles of natural justice. The order given by the inferior court in those cases are then quased.
Mandamus is means “we command”. This writ is issued by the superior court to the inferior courts to order them to do an act or to abstain from doing an act. It can also be issued to an inferior tribunal, Board, Corporation or any administrative body. It cannot be issued against a private person. When an individual has a right which has been infringed and even after their request to the authority has not performed their duty and provided any help to the aggrieved, then in that case, Mandamus is issued to the court or authority to perform their duties. In the case of , an order was passed by the Income Tax Tribunal and the officer was to comply by it. However, the officers did not follow the order so the Supreme Court issued an order filed through Mandamus directing them to follow their duties and act according to the directions of the tribunal.
Opposite to Certiorari, this writ is used to for stopping any inferior court or tribunal for stopping them from deciding a case. This writ is not generally issued by the higher court, as it prohibits a court to take any decision on a given topic. This is commonly when the lower courts are ovverstepping their jurisdiction. Like a tribunal reviewing a High Court’s order.
Quo Warranto means “under what authority”. It is issued by the courts to a private person when the person is holding an office without any authority. This writ is discretionary and can be passed by only courts and not on the demand of any othwer person. However, the notice being issued must be against a person who is holding a public office. In the case of NIranjan Kuman Goenka v. The university of Bihar, Muzzfarpur, it was held that courts shall not issue any writ which is against the person who is holding a private office, it must be for a public office.
Whenever any individual suffer harm or losses due to an infringement of their legal rights, they can ask for compensation. Compensation means receiving financial payment or restitution for the damage suffered by any individual. It is meant to restore the individual to the positio they would have been had their legal rights not been breached. For example- when a person suffers legal injury, they can seek compensation under any agreement or even compensation for mental agony.
In cases where compensations are not possible in monetary terms or becomes inadequate in quantum, then specific performance helps the party to get their obligated work done. It requires the perpetrator to carry out the work as was laid down or any other work which could be decided by the courts so that the suffering party’s original position is restored without them having to suffer.
Damages are granted for violation of a legal right. This right could be given to the parties by any agreement or by any authority. Damages can be determined at a later stage or be pre-determined. It can also be punitive or punishing in nature, compensatory or to provide for actual losses or nominal i.e., any other relief where no significant loses have been incurred. .
When a legal right of a person is infringed and the case is of criminal in nature, the perpetrator may even face imprisonment. For instance,if any provision for any personal laws are violated, then the person can even face imprisonment for instance, there is fine as well as imprisonment as punishment for triple talaq.
This concerned one of the most important fundamental rights, principles related to the right to privacy, and the Aadhar card scheme. The case was filed by a 91- year old retired High Court Judge Puttaswamy against the Union of India. It challenged the government’s Aadhar scheme, which contained the biometric identification system, which was to be collected by the government as a record for government uses. The government proposed making it mandatory for access to government services and for availing benefits. The case, taking precedent from privacy judgments in the M.P. Sharma case and Kharak Singh case, went through several benches and was finally referred in front of the 9-judge bench of the Supreme Court.
Does the maintenance of a record of biometric data violate the Right to Privacy?
“Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value that straddles the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.” The Aadhar Act was held constitutional by the judgement as it is not violative of the right to privacy. It was also unanimously decided that the right to privacy is a fundamental right under the Constitution of India, is an integral and intrinsic aspect of dignity, independence, and freedom, and can be subjected to change in basic circumstances.
In this , Navtej Singh Johar filed a writ petition in front of the Supreme Court challenging the decision of the , which criminalised consensual carnal intercourse against the order of nature. of the was held to be unconstitutional, and this case challenged it, and the matter was referred to the five-judge bench of the Supreme Court.
Whether Section 377 of the Indian Penal Code 1860 was unconstitutional.
In this landmark judgement, the Apex Court held Section 377 to be unconstitutional as it violated Articles 14, 15, 19, and 21. The bench was of the opinion that “distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.” It relied on several judgements, like the Puttaswamy Judgement as an effective tool of the right to privacy and the to protect the rights of transgender people. It was finally held that sexual orientation was natural, innate and immutable. It held that the “choice of an LGBT person to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice and an expression of their autonomy and self-determination”.
This concerns several aspects, but one of the aspects that it highlights is the legal right to choose the partner of one’s own liking. This is also backed by the fundamental right under Article 21, which is the right to life. The case concerns a girl named Akhila, who was a homoeopathy medicine student. She had converted to Islam and taken up the name Hadiya. She married Shaffin Jahan and eloped. Her father filed several Writ petitions to find out about her, and when she was found, it was revealed that she was staying with her husband and did not want to go back to her family. The Kerala High Court had invoked parens patriae jurisdiction and annulled their marriage. The matter was then challenged before the Supreme Court.
Whether the Kerala High Court’s decision to annul the marriage was justifiable.
It was held that the Kerala High Court had defaulted in exercising its jurisdiction and that it was in excess of its powers. Highlighting every individual’s right to pursue their way of life and autonomy in deciding their own interests, it was said that “choice of a partner whether within or outside marriage lies within the exclusive domain of each individual (as) Intimacies of marriage lie within a core zone of privacy, which is inviolable”. The decision of the High Court was thus quashed.
In this , the Editor-in-Chief of Republic TV and R Bharat, Mr. Arnab Goswami, petitioned the Supreme Court in a Criminal Writ Petition to have his fundamental right to freedom of speech and expression protected. Following the airing of two programs on Republic TV, numerous FIRs and criminal charges were filed against him in numerous states, giving rise to the petition. These covered the Palghar Lynching incident and questioned Sonia Gandhi’s silence, leading to significant fears of a planned campaign. Mr. Goswami also spoke of an assault he reportedly suffered at the hands of INC members. He was arrested and was seeking bail, citing Article 19 of the Indian Constitution.
Whether the statements given by the petitioner on live television would be protected by freedom of speech in the Constitution under Article 19.
All citizens have the right to engage in debates and express their views, as their legal as well as Fundamental rights allow. However, as mentioned in Article 19(2) of the Indian Constitution, this freedom is not unqualified and must be tempered with reasonable limitations. The court highlighted that exercising free speech should not be done at the expense of religious belief. Although Article 19(1) gives people freedom to express their views, Article 19(2) places a reasonable restriction within which the right must be exercised. The Supreme Court allowed the bail application, but it did not dismiss the FIRs brought against the petitioners because it thought they were founded on legitimate limitations intended to protect the integrity of the country.
The relates to the Indian government’s arbitrary decision to shut down the internet in Jammu and Kashmir in August 2019 following the quashing of Article 370. It contested the validity of the shutdown, which was brought before the Supreme Court. According to the petitioners, the closure infringed on the fundamental freedoms of expression and the right to do any kind of business or trade utilising the Internet, all of which are guaranteed by Article 19(1) of the Indian Constitution.
Whether the internet shutdown in Jammu and Kashmir violated the fundamental rights of freedom of speech and expression and the right to business and trade.
It was held that the internet’s continuous shutdown violated the fundamental rights of freedom of expression and the right to business and trade of the citizens, and they can’t be curtailed as they are well protected. It declared that the law prohibits the permanent suspension of internet access and that any restrictions imposed must be temporary, finite in time, and subject to court review.
In conclusion, understanding the rights and liberties that are guaranteed to people depends on knowing the difference between fundamental rights and legal rights. Fundamental rights derive from the ideas of equality and human dignity and are intrinsic to all people. They are protected against state encroachment by being incorporated into constitutional instruments. Legal rights, on the other hand, are provided by particular rules and regulations that concentrate on more particular facets of society. While protecting individual liberty is the goal of both sorts of rights. Basic rights are given a higher degree of value and are regarded as being necessary for a just and democratic society.
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It has been published by Rachit Garg.
Introduction
The standard of permissible behaviour or action within a limited sphere is called a right. They are the actions of any individual in society that the law has permitted. Rights play an important role in the lives of all members of society. They act as pillars of freedom, respect, and equality. They form the basis of creating a just society where everyone has the power to protect and empower themselves. Apart from these, rights are a framework that protects an individual from discrimination, oppression, and abuse. In a society where people are well aware of their rights, there will always be growth, justice, and a constant effort towards the betterment of humanity.
Difference between fundamental rights and legal rights
The basic difference between fundamental rights and legal rights is that the former are recognised and protected by the Constitution or statute of the country from which they originate, and the latter is conferred upon people by specific laws and regulations that are limited by legislation. We shall see the difference between the two in more depth now.
Meaning
Fundamental rights
Fundamental rights are the fundamental, inherent human rights that have been recognised, safeguarded, and included in the . All citizens are entitled to these fundamental rights, regardless of their nationality, ethnicity, gender, religion, or other traits.
Legal rights
Legal rights, on the other hand, are any actions or behaviour of a person that the law permits. They are given to an individual by the country or the government to enjoy liberty. These rights are not universal, and they vary from country to country, state to state, and from time to time. Legal rights cover the common features of all rights, i.e., legal, moral, etc.
Origin
Fundamental rights
The origin of fundamental rights can be traced back to the time of recognition of the inherent interests of Individuals and the need to protect their essential liberties. The political and cultural movements that supported individual liberties are the origins of the idea of basic rights. Important turning points were the in 1789, the in 1689, and the issued by King John of England in 1215. The 1948 and subsequent international human rights agreements have strengthened it in modern times.
Since the 1950 draft of the Indian Constitution, basic rights have existed in India. A detailed list of basic rights was incorporated into the Constitution, which was influenced by international human rights ideas.
Legal rights
The origin of legal rights can be traced back to the evolution of legal frameworks, and social order is where legal rights are. The creation of laws, rules, and legal frameworks within a certain jurisdiction results in the emergence of legal rights. By passing laws or codes, they are often established and acknowledged by legislative bodies like parliaments or congresses. Depending on the country and legal system, the exact origins of legal rights may change. Legal rights may occasionally arise from constitutional clauses or charters, but more frequently, they are formed through common law norms, court rulings, or international treaties and conventions. Social, cultural, and political considerations, historical changes, and the continuous interpretation and execution of the law all have an impact on how legal rights develop.
Scope
The scope of fundamental and legal rights has been further categorised under several heads.
Fundamental rights
The scope of fundamental rights that have been granted to every citizen in a particular jurisdiction encompasses several rights and covers the following
Civil Liberties
The freedoms and rights of individuals are protected by a number of civil liberties. These include liberty, privacy, and the freedoms of speech, expression, religion, and assembly. These rights guarantee the people the ability to express themselves, exercise their faith, gather in peace, and live their lives as they see fit without suffering unjustified interference.
Political Rights
Political rights ensure that people can participate in the political process. They consist of the freedom to participate in politics, to associate with political groups, and to run for public office. These rights give people the ability to participate in politics, join organisations, and hold public office, all of which support the democratic operation of a society.
Social and Economic Rights
The focus of social and economic rights is on the welfare and socioeconomic circumstances of the person. These rights include the right to shelter, a fair quality of life, social security, healthcare, and education. They want to provide everyone in society with equal chances, opportunities to deal with injustices, and advances in social welfare.
Cultural Rights
Cultural identity, language, customs, and legacy are all protected under cultural rights. These rights guarantee the protection and development of various cultural expressions without prejudice. Cultural rights support variety, inclusion, and the improvement of both collective and personal experiences.
Legal rights
Legal rights can be categorised under the following broad headings.
Human Rights
International treaties and human rights concepts may also be incorporated into legal systems, expanding the range of legal rights to cover essential human rights, including the right to life, liberty, equality, and non-discrimination. The majority of rights are covered by human rights since they are basic rights guaranteed to all people by the advancement of humanity.
Property Rights
These rights cover both tangible assets (land, buildings, and goods) and intangible assets (intellectual property), and they pertain to the ownership, use, and protection of property in general. The was formerly a fundamental right, but it ceased to be so in 1978 when the to the Indian Constitution was adopted.
Economic rights
These rights are specifically related to economic well-being and financial security. These rights include the right to a proper standard of living, The right to adequate food, housing, water, and sanitation, and the right to work.
Contractual Rights
These rights protect people’s rights and obligations in contractual relations by governing legal agreements and contractual commitments between parties. This has its roots in the laissez-faire or minimal government intervention doctrine.
Family Rights
These rights create legal duties and safeguards within familial connections and deal with issues including marriage, divorce, child custody, adoption, and inheritance.
Applicability
To understand the applicability of the fundamental and legal rights, it is important to first look at their types and then make out their application.
Fundamental rights
There are six fundamental rights given by the Constitution of India, which are-
Right to Equality
The right to Equality is given in the Indian Constitution in Articles 14, 15, 16, 17, and 18.
Article 14: Right to Equality
Equality before the law and equal protection under the law are guaranteed under of the Indian Constitution. It bars discrimination based on racial, ethnic, caste, sexual, or geographic origin. The Supreme Court upheld the right to equality and against discrimination by decriminalising homosexuality in the landmark decision of Navtej Singh Johar v. Union of India (2018).
Article 15: Prohibition of Discrimination
Discrimination on the basis of religion, ethnicity, caste, sex, or place of birth is forbidden under . The Supreme Court invalidated a government decision that offered caste-based reservations in educational institutions in the because it contravened Article 15 of the Constitution. However, the Constitution was eventually changed to provide reserves for economically and socially disadvantaged groups.
Article 16: Equality of Opportunity in Public Employment
On the subject of public employment, equality of opportunity is guaranteed by . The Supreme Court established the legality of reservations in public employment, up to a maximum of 50%, in the case of
Article 17: Abolition of Untouchability
Untouchability is outlawed, and its practice is forbidden in all forms under . The Supreme Court determined that manual scavenging constituted untouchability and was a violation of Article 17 in the case of .
Article 18: Abolition of Titles
forbids the state from bestowing any titles, with the exception of academic and military accomplishments. The Supreme Court affirmed the validity of the National Awards, including the Padma Awards, in the case of since they were not titles as defined by Article 18.
Right to Freedom
Article 19: Protection of Certain Rights Regarding Freedom of Speech, etc.
Six freedoms are guaranteed by – speech and association, assembly, movement, dwelling, and profession. The Supreme Court invalidated Section , in the landmark case of because it infringed on the right to freedom of speech and expression granted by Article 19(1)(a).
Article 20: Protection in Respect of Conviction for Offences
Protection from double jeopardy, arbitrary and disproportionate punishment, and self-incrimination are all provided under . The Supreme Court ruled in that the use of narco-analysis, polygraph, and brain mapping tests on defendants violated their Article 20(3) protection against self-incrimination.
Article 21: Protection of Life and Personal Liberty
The right to life and personal liberty is protected under . The Supreme Court ruled in the illustrious case of that the right to life and personal liberty includes the right to live with dignity. , another significant decision, saw the Supreme Court proclaim the right to privacy to be a basic right protected by Article 21.
Article 22: Protection Against Arrest and Detention
Protection against arbitrary action by the state, arrest, and imprisonment is provided under . In the case of , the Supreme Court established rules for the police to adhere to while conducting arrests in order to prevent violence in custody and guarantee the preservation of the detained person’s rights.
Right against Exploitation
Article 23: Prohibition of Traffic in Human Beings and Forced Labour
Forced labour and human trafficking are prohibited by . The Supreme Court ruled in that the state was required to take the appropriate action to stop bonded labour and rehabilitate the victims.
Article 24: Prohibition of Employment of Children in Factories
attempts to safeguard children’s rights to education and a healthy upbringing while also safeguarding them against exploitation. Children under the age of 14 are not allowed to work in factories, mines, or other dangerous occupations.
Article 25: Freedom of Conscience and Free Profession, Practice, and Propagation of Religion
The right to freely profess, practice, and spread one’s religion is guaranteed under . This privilege is constrained by laws governing basic rights, public morals, and health. The Supreme Court ruled in that secularism is a fundamental aspect of the Indian Constitution and that the state has no religion. The Court highlighted that the state must not favour any one religion and must treat all religions equally.
Right to Freedom of Religion
Article 26: Freedom to Manage Religious Affairs
grants religious denominations the right to establish and maintain institutions for religious and charitable purposes, manage their own affairs in matters of religion, and own and acquire movable and immovable property. The Supreme Court determined that the term “religion” must be given a broad and liberal construction and that religious acts are protected under Article 26 in the case of .
Article 27: Freedom from Payment of Taxes for Promotion of any Particular Religion
According to , the state cannot impose any taxes to support or further any one religion or religious sect. The Supreme Court ruled that the levy of a tax on a Jain temple for the maintenance of a Hindu temple violated Article 27 in the case of .
Article 28: Freedom from Attendance at Religious Instruction or Worship in Certain Educational Institutions
forbids religious instruction and worship in establishments of higher learning completely supported by public funds. However, this clause does not apply to state-run institutions that were founded under a trust or endowment that mandates religious education.
The Supreme Court ruled that the inclusion of religious instruction in government schools did not violate Article 28 in the famous case of .
Cultural and Educational Rights
Article 29: Protection of Interests of Minorities
guarantees minorities’ rights to preserve their own language, script, or culture in order to safeguard their interests. In the landmark decision of , the Supreme Court ruled that it was against Article 29 to require only Punjabi as the medium of instruction in educational institutions.
Article 30: Right of Minorities to Establish and Administer Educational Institutions
states that minorities have the right to establish and govern educational institutions of their choice. In the case of , the apex court held that the right to establish educational institutions and administer them is allowed as long as it is done within reasonability. It is not an absolute right and is subject to reasonable restrictions.
Article 31: Right to Property (Repealed)
, which guaranteed the right to property, was repealed by the 44th Amendment Act 1978. It used to be a fundamental right initially. The right to property is now a legal right under of the Constitution.
Right to Constitutional Remedies
Article 32: Remedies for Enforcement of Fundamental Rights
states the right to approach the Supreme Court for the enforcement of fundamental rights. Individuals have the right to go directly to the Supreme Court for the enforcement of their basic rights under Article 32 of the Indian Constitution. It serves as a shield against the state and private entities violating a person’s rights and is seen as a basic right in and of itself. It is considered the heart and soul of the Indian Constitution. In the landmark case of Bandhua Mukti Morcha v. Union of India (1984), the Supreme Court held that public interest litigation could be filed for raising child labour-related issues and putting issues conspicuously on the government’s agenda, as this instrument protects the child against exploitation and protects their rights.
Legal rights
Legal rights are the wider category that contains all the other types of rights under it. To understand it in terms of Venn diagrams, it can be said that legal rights are the outer main set, and all the other rights are subsets of it. The applicability can be understood with the help of an example and case for each.
Human rights
Every citizen of India is entitled to human rights, such as the rights to life, liberty, equality, and non-discrimination. Due to India’s adherence to numerous international human rights treaties and conventions, these rights are recognised both nationally and globally through constitutional provisions. Other than fundamental rights, it also covers a range of other rights.
Property rights
Prior to 1978, India recognised the right to property as a fundamental freedom, although that recognition was later revoked. However, other laws and legal frameworks, such as the Indian Constitution and particular property-related legislation, continue to preserve property rights. Legislations like the , , , , , and many more.
Economic rights
All citizens in India are entitled to economic rights, such as the right to a decent quality of living, sufficient food, housing, water, and sanitation, as well as rights at work. To ensure economic security and well-being, the government has enacted a number of laws, policies, and welfare programs to defend these rights. Some of these laws are the (MGNREGA), by the Government of India.
Contractual rights
, which is valid in India, governs contractual rights. By defining the rights and obligations of parties involved in contractual interactions and outlining remedies in the event of a contract breach, this act creates the legal basis for engaging in contracts. A few other legislations covered under the head are the , The and the
Family rights
Family rights pertain to different aspects of family ties, such as marriage, divorce, child custody, adoption, and inheritance, and are applicable to persons within the Indian legal system. Personal rules based on a person’s religion or cultural practices control these rights. For instance, and even some secular laws like Special Marriage Act 1955, and many more.
Examples
Fundamental rights
Fundamental rights are the basic human rights that are recognised universally and are inherent to all individuals regardless of their nationality, race, religion, or sex. Examples include the right to life, liberty, and security of the person; the freedom of religion, thinking, and conscience; and the freedom of speech.
Legal rights
Legal rights are those that are guaranteed to citizens under the laws of a country. The right to a fair trial, the right to vote, and the right to possess property are a few examples.
Violation of rights
Fundamental rights
Fundamental rights are infringed when they are violated in some way. This can manifest itself primarily as discrimination. For instance, a person’s right to equality is infringed when they are treated differently on the basis of their colour, religion, or gender. A person’s right to freedom of speech and expression is also violated when it is restricted or when they are punished for expressing their opinions. The rights to life and personal freedom may be violated in instances of wrongful detention, torture, or executions without trial.
Legal rights
A violation of legal rights occurs when an individual’s rights, as protected by law, are infringed upon. This could include instances such as unlawful detention, denial of a fair trial, discrimination based on race or gender, or infringement of property rights. Such violations can lead to legal action and penalties for the offender.
Remedies
Fundamental rights
Whenever there is a breach of a fundamental right of an individual, they can seek remedy in High Courts or the Supreme Court and file for one of these five writs which protect the interest of the citizens. These writs are as follows-
Habeas Corpus
Habeas Corpus means “you shall have the body”. This writ is used to most effectively help an illegally detained person. By this writ, the court asks the authority for the reason for their detention, and in case of failure by the detaining authority to provide any valid reason for detention, the person is released by the court with immediate effect. In the case of the writ of Habeas Corpus was made regarding the inhuman treatment of the jail inmates and the Supreme Court accepted the letter and the writ was issued.
Certiorari
Certiorari is a corrective writ. It aims to correct any error by the lower court. This writ is issued mostly to the lower courts. Certiorari is used by the higher courts when the inferior courts have acted in excess of their power and excess of jurisdiction. It can also be issued when the inferior court finds out that there is a violation of principles of natural justice. The order given by the inferior court in those cases are then quased.
Mandamus
Mandamus is means “we command”. This writ is issued by the superior court to the inferior courts to order them to do an act or to abstain from doing an act. It can also be issued to an inferior tribunal, Board, Corporation or any administrative body. It cannot be issued against a private person. When an individual has a right which has been infringed and even after their request to the authority has not performed their duty and provided any help to the aggrieved, then in that case, Mandamus is issued to the court or authority to perform their duties. In the case of , an order was passed by the Income Tax Tribunal and the officer was to comply by it. However, the officers did not follow the order so the Supreme Court issued an order filed through Mandamus directing them to follow their duties and act according to the directions of the tribunal.
Prohibition
Opposite to Certiorari, this writ is used to for stopping any inferior court or tribunal for stopping them from deciding a case. This writ is not generally issued by the higher court, as it prohibits a court to take any decision on a given topic. This is commonly when the lower courts are ovverstepping their jurisdiction. Like a tribunal reviewing a High Court’s order.
Quo warranto
Quo Warranto means “under what authority”. It is issued by the courts to a private person when the person is holding an office without any authority. This writ is discretionary and can be passed by only courts and not on the demand of any othwer person. However, the notice being issued must be against a person who is holding a public office. In the case of NIranjan Kuman Goenka v. The university of Bihar, Muzzfarpur, it was held that courts shall not issue any writ which is against the person who is holding a private office, it must be for a public office.
Legal rights
Compensation
Whenever any individual suffer harm or losses due to an infringement of their legal rights, they can ask for compensation. Compensation means receiving financial payment or restitution for the damage suffered by any individual. It is meant to restore the individual to the positio they would have been had their legal rights not been breached. For example- when a person suffers legal injury, they can seek compensation under any agreement or even compensation for mental agony.
Specific Performance
In cases where compensations are not possible in monetary terms or becomes inadequate in quantum, then specific performance helps the party to get their obligated work done. It requires the perpetrator to carry out the work as was laid down or any other work which could be decided by the courts so that the suffering party’s original position is restored without them having to suffer.
Damages
Damages are granted for violation of a legal right. This right could be given to the parties by any agreement or by any authority. Damages can be determined at a later stage or be pre-determined. It can also be punitive or punishing in nature, compensatory or to provide for actual losses or nominal i.e., any other relief where no significant loses have been incurred. .
Imprisonment
When a legal right of a person is infringed and the case is of criminal in nature, the perpetrator may even face imprisonment. For instance,if any provision for any personal laws are violated, then the person can even face imprisonment for instance, there is fine as well as imprisonment as punishment for triple talaq.
Summarising the difference between fundamental rights and legal rights
| Serial. No. | Basis of distinction | Fundamental Rights | Legal Rights |
| Meaning | These rights are inherent human rights recognised and protected by the Indian Constitution. | Legal rights are rights that are actions or behaviours permitted by law from country to country. | |
| Origin | Fundamental Rights originate from international human rights agreements and are influenced by historical documents. | Legal Rights originate from a legal framework and are established through laws, court rulings and several treaties. | |
| Scope | Fundamental Rights encompass civil liberties, political rights and social as well as economic and cultural rights. | Legal rights include human rights, property rights, economic rights, contractual rights and family rights. | |
| Applicability | Fundamental rights are applicable to all citizens within a restricted jurisdiction. | Legal rights vary from country to country, state to state, and can change over time and with the government. | |
| Protection | Fundamental rights are protected by the Indian Constitution and International Human treaties. | Legal rights are protected by legal frameworks, laws, regulations and Judicial systems. | |
| Violations | Discrimination, restricted speech, and unlawful detention are some of the ways in which fundamental rights are violated. | Legal rights are violated through infringement of property rights, denial of fair rights and so on. | |
| Legal Framework | Fundamental rights are incorporated and protected by the Indian Constitution. | Legal rights are incorporated by the country’s laws, court rulings and treaties. | |
| Enforcement | Fundamental rights are enforced through the Supreme Court and High courts through Article 32 of the Indian Constitution. | Legal rights are enforced through legal procedures, court systems, and other mechanisms provided by the legal framework. | |
| Remedies | Article 32 provides several remedies to the citizens for the breach of their Fundamental rights. There are 5 writs which protect the interest of the citizens- Habeas Corpus, Quo-Warranto, Mandamus, Certiorari and Prohibition. | The remedies for breaching legal rights can be sought by asking for- Compensation, Specific performance, injunction, liquidated and unliquidated damages, penalties and even imprisonment. | |
| Examples | Right to lifeRight to equality Right to constitutional remedies | Property rightsEconomic rights Cultural rights |
Landmark judgments
K.S. Puttaswamy (Retd.) v. Union of India (2017)
Facts
This concerned one of the most important fundamental rights, principles related to the right to privacy, and the Aadhar card scheme. The case was filed by a 91- year old retired High Court Judge Puttaswamy against the Union of India. It challenged the government’s Aadhar scheme, which contained the biometric identification system, which was to be collected by the government as a record for government uses. The government proposed making it mandatory for access to government services and for availing benefits. The case, taking precedent from privacy judgments in the M.P. Sharma case and Kharak Singh case, went through several benches and was finally referred in front of the 9-judge bench of the Supreme Court.
Issue
Does the maintenance of a record of biometric data violate the Right to Privacy?
Judgment
“Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value that straddles the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.” The Aadhar Act was held constitutional by the judgement as it is not violative of the right to privacy. It was also unanimously decided that the right to privacy is a fundamental right under the Constitution of India, is an integral and intrinsic aspect of dignity, independence, and freedom, and can be subjected to change in basic circumstances.
Navtej Singh Johar and Ors. v. Union of India (2018)
Facts
In this , Navtej Singh Johar filed a writ petition in front of the Supreme Court challenging the decision of the , which criminalised consensual carnal intercourse against the order of nature. of the was held to be unconstitutional, and this case challenged it, and the matter was referred to the five-judge bench of the Supreme Court.
Issue
Whether Section 377 of the Indian Penal Code 1860 was unconstitutional.
Judgment
In this landmark judgement, the Apex Court held Section 377 to be unconstitutional as it violated Articles 14, 15, 19, and 21. The bench was of the opinion that “distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.” It relied on several judgements, like the Puttaswamy Judgement as an effective tool of the right to privacy and the to protect the rights of transgender people. It was finally held that sexual orientation was natural, innate and immutable. It held that the “choice of an LGBT person to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice and an expression of their autonomy and self-determination”.
Shafin Jahan v. Asokan K.M. (2018)
Facts
This concerns several aspects, but one of the aspects that it highlights is the legal right to choose the partner of one’s own liking. This is also backed by the fundamental right under Article 21, which is the right to life. The case concerns a girl named Akhila, who was a homoeopathy medicine student. She had converted to Islam and taken up the name Hadiya. She married Shaffin Jahan and eloped. Her father filed several Writ petitions to find out about her, and when she was found, it was revealed that she was staying with her husband and did not want to go back to her family. The Kerala High Court had invoked parens patriae jurisdiction and annulled their marriage. The matter was then challenged before the Supreme Court.
Issue
Whether the Kerala High Court’s decision to annul the marriage was justifiable.
Judgment
It was held that the Kerala High Court had defaulted in exercising its jurisdiction and that it was in excess of its powers. Highlighting every individual’s right to pursue their way of life and autonomy in deciding their own interests, it was said that “choice of a partner whether within or outside marriage lies within the exclusive domain of each individual (as) Intimacies of marriage lie within a core zone of privacy, which is inviolable”. The decision of the High Court was thus quashed.
Arnab Goswami v. Union of India (2020)
Facts
In this , the Editor-in-Chief of Republic TV and R Bharat, Mr. Arnab Goswami, petitioned the Supreme Court in a Criminal Writ Petition to have his fundamental right to freedom of speech and expression protected. Following the airing of two programs on Republic TV, numerous FIRs and criminal charges were filed against him in numerous states, giving rise to the petition. These covered the Palghar Lynching incident and questioned Sonia Gandhi’s silence, leading to significant fears of a planned campaign. Mr. Goswami also spoke of an assault he reportedly suffered at the hands of INC members. He was arrested and was seeking bail, citing Article 19 of the Indian Constitution.
Issues
Whether the statements given by the petitioner on live television would be protected by freedom of speech in the Constitution under Article 19.
Judgment
All citizens have the right to engage in debates and express their views, as their legal as well as Fundamental rights allow. However, as mentioned in Article 19(2) of the Indian Constitution, this freedom is not unqualified and must be tempered with reasonable limitations. The court highlighted that exercising free speech should not be done at the expense of religious belief. Although Article 19(1) gives people freedom to express their views, Article 19(2) places a reasonable restriction within which the right must be exercised. The Supreme Court allowed the bail application, but it did not dismiss the FIRs brought against the petitioners because it thought they were founded on legitimate limitations intended to protect the integrity of the country.
Anuradha Bhasin v. Union of India (2020)
Facts
The relates to the Indian government’s arbitrary decision to shut down the internet in Jammu and Kashmir in August 2019 following the quashing of Article 370. It contested the validity of the shutdown, which was brought before the Supreme Court. According to the petitioners, the closure infringed on the fundamental freedoms of expression and the right to do any kind of business or trade utilising the Internet, all of which are guaranteed by Article 19(1) of the Indian Constitution.
Issue
Whether the internet shutdown in Jammu and Kashmir violated the fundamental rights of freedom of speech and expression and the right to business and trade.
Judgment
It was held that the internet’s continuous shutdown violated the fundamental rights of freedom of expression and the right to business and trade of the citizens, and they can’t be curtailed as they are well protected. It declared that the law prohibits the permanent suspension of internet access and that any restrictions imposed must be temporary, finite in time, and subject to court review.
Conclusion
In conclusion, understanding the rights and liberties that are guaranteed to people depends on knowing the difference between fundamental rights and legal rights. Fundamental rights derive from the ideas of equality and human dignity and are intrinsic to all people. They are protected against state encroachment by being incorporated into constitutional instruments. Legal rights, on the other hand, are provided by particular rules and regulations that concentrate on more particular facets of society. While protecting individual liberty is the goal of both sorts of rights. Basic rights are given a higher degree of value and are regarded as being necessary for a just and democratic society.
References
- Lexis Nexis’s Indian Constitutional Law by M P Jain – 8th Edition November 2022
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