Concept Of Fundamental Rights
Since the 17th century, human thinking has been veering round to the theory that man has certain essential, basic, natural and inalienable rights or freedoms and it is the function of the state, that human liberty may be preserved, human personality developed, and an effective social and democratic life promoted, to recognise these rights and freedoms and allow them a free play.
The concept of human rights protects individual against the excesses of the state and represents an attempt to protect the individuals from oppression and injustice. In modern times,it is widely accepted that the right to liberty is the very essence of a free society and it must be safeguarded at all times. The idea of guaranteeing certain rights is to ensure that a person may have minimum guaranteed freedom.
With this end in view, some written constitutions guarantee a few rights to the people and forbid governmental organs from interfering with the same. In that case, a guaranteed right can be limited or taken away only by the eloborate and formal process of constitutional amendment rather than by ordinary legislation. These rights are characterized as FUNDAMENTAL RIGHTS.
The entrenched Fundamental Rights have a dual aspect. FROM ONE POINT OF VIEW, they confer justiciabe rights on the people which can be enforced through the courts against the government. FROM ANOTHER POINT OF VIEW, the Fundamental Rights constitute restrictions and limitations on government action, whether it is taken by the Centre, or a State or a local government. The government cannot take any action, administrative or legislative, by which a Fundamental Right is infringed.
The modern trend of guaranteeing Fundamental Rights to the people may be traced to The constitution of USA drafted in 1787. The US Constitution was the first modern constitution to give concrete shape to the concept of human rights by putting them in to the Constitution and making them justiciabe and enforceable through the instrumentality of the courts.
The concept of Fundamental Rights thus represents the trend in the modern democratic thinking. The enforcement of human rights is a matter of major significance to modern constitutional jurisprudence. The incorporation of Fundamental Rights as enforceable rights in the modern constitutional documents as well as the internationally recognised Charter Of Human Rights emanate from the doctrine of natural law and natural rights.
In CONCLUSION, The Human Rights Act does not provide the courts with the power to strike down legislation which is inconsistent with the Convention rights. A judicial declaration of incompatibility doesn't make the legislation void. In fact, such a declaration doesn't affect the validity of the law at all.
Fundamental Rights In India
Coming to India, a few good reasons made the enunciation of the Fundamental Rights in the Constitution rather inevitable. FOR ONE THING, the main political party, the Congress, had for long been demanding these Rights against the British Rule. During the British Rule in India,human rights were violated by ruler's on a very wide scale. Therefore, the framer's Of constitution, many of whom had suffered long incarceration during the British regime, had a very positive attitude towards these rights.
SECONDLY, the Indian society is fragmented into many religious, cultural and linguistic groups,and it was necessary to declare Fundamental Rights to give to the people a sense of security and confidence.
The need to have the Fundamental Rights was so very well accepted on all hands that in the Constituent Assembly, the point was not even considered whether or not to incorporate such Rights in the Constitution. In fact, the fight all along was against the restrictions being imposed on them and the effort all along was to have the Fundamental Rights on as broad and pervasive a basis possible.
The Fundamental Rights are a necessary consequence of the declaration in the Preamble to the Constitution that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic, and political, liberty of thought, expression, belief, faith, and worship; equality of status and opportunity.
Part III of the Constitution protects substantive as well as procedural rights.
Fundamental Rights have two aspects, FIRSTLY, they act as fetter on plenary legislative powers, and SECONDLY, they provide conditions for fuller development of our people including their individual dignity.
Fundamental Rights must not be read in isolation but along with directive principles and fundamental duties. The Indian Constitution guarantees essential human rights in the form of Fundamental Rights under Part III and also directive principles of State policy in Part IV which are fundamental in the governance of the country.
Articles 12 to 35 of the Constitution pertain to Fundamental Rights of the people.
The Fundamental Rights in the Indian Constitution have been grouped under seven heads as follows:
(i) Right to Equality comprising Articles 14 to 18, of which Article 14 is the most important.
(ii) Right to Freedom comprising Articles 19 to 22 which guarantee several freedoms, the most important of which is the freedom of speech.
(iii) Right against Exploitation consists of Articles 23 and 24.
(iv) Right to Freedom of Religion is guaranteed by Articles 25 to 28.
(v) Cultural and Educational Rights are guaranteed by Articles 29 and 30.
(vi) Right to Property is now very much diluted and is secured to some extent by Articles 30-A, 31-A, 31-B and 31-C.
(vii) Right to Constitutional Remedies is secured by Articles 32 to 35.
These Articles provide the remedies to enforce the Fundamental Rights,and of these the most important is Article 32.
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