Fundamental Rights- History, Origin, Need, Scope, Object, Claim, Protection

Fundamental Rights are contained under Part III of the Indian Constitution from Article 12 to 35. Fundamental Rights are those rights that are fundamental inalienable rights and are very necessary for the survival of human beings as human beings. In the absence of these rights, human life will be nothing more than mere animal existence.

History of Fundamental Rights-

The concept of human rights can be traced back to the natural law philosophers, such as Sir John Locke and Rousseau. The natural Law philosophers philosophized over such inherent human rights and sought to preserve these rights by propounding the “Theory of Social Impact”.

According to Locke, man is born “with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature” and he has by nature of power “to preserve his property – that is, his life, liberty and estate, against the injuries and attempts of other men”.

The Declaration of the French Revolution, 1789, can be regarded as a concrete political statement on Human Rights– “The aim of all political association is the conservation of the natural and inalienable rights of man”.

The basic concept of human rights is to protect individuals from the arbitrary powers of the state. It is for the protection of individuals from injustice. Many written constitutions of the world like that of India, the USA etc. have guaranteed to its citizens some basic Fundamental Rights in which the state has almost no scope to interfere. These rights cannot be substituted or repealed by any ordinary legislation, it requires a very discreet elaborated constitutional procedure.

Origin of Modern Fundamental Rights-

The origin of modern Fundamental Rights can be traced back to the Constitution of the USA (Drafted in 1787). It was the first State which guarantee Fundamental Rights to its citizens and the source was the Constitution. It was not only guaranteed but was made justifiable and enforceable through the courts. It means that the Fundamental Right was not only guaranteed but it was protected also through the instrumentality of the court of Law.

The original US Constitution did not have any provision for Fundamental Rights and for this reason, it was facing very much criticism. Consequently, the Bill of Rights (1791) was incorporated with ten amendments to the US Constitution which protects the life, liberty, and property of its citizens.

People’s basic rights were given a more concrete and universal touch by the Charter of Human Rights (Universal Declaration of Human Rights, 1948) which was enacted by the United Nations Organisation (UNO) and the European Convention on Human Rights (European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950).

The Preamble to the Universal Declaration of Human Rights (UDHR) declares that “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

Do We Need Fundamental Rights?

As we know Fundamental Rights are very basic and elementary rights. But it becomes necessary to know what is the need of these Rights. These are very necessary for the Survival of any Human Being as a human being. It protects the citizens and to some extent the non-citizens from the arbitrary power of the state. If there is an availability of Fundamental Rights in any State then the person whose Fundamental Rights are violated may approach the court for the protection of his/her fundamental Rights.

Scope and object of Fundamental Rights-

The scope of Fundamental Rights is infinite but it ends from that extent from where the fundamental rights of other person starts. Therefore, any person can enjoy their fundamental right without any hindrance but such enjoyment should not violate the fundamental rights of any other person. If anyone violates the fundamental rights of any person then the State will use its machinery to protect the same and the person who violates the fundamental right of another person shall be punished according to law by the court of law.

The attempt of the court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction (Menika Gandhi vs. Union of India, 1978, SC).

The object of Fundamental Rights cannot be unified into any single objective. There would have been too many objects that the framers of the Constitution or the Legislators, as the case may be, were intending to achieve. A few of the objectives are as follows:

• To give a sense of security and confidence to the citizens.
• To maintain social harmony in the society.
• To ensure equality in the society.
• To maintain the Rule of Law in the society
• To protect the citizens from the arbitrary powers of the State.
• To protect the life and liberty of the citizens.
• To give freedom to settle at any place, to move freely, to form associations, to protest peacefully.
• To give religious freedom to citizens.
• To protect citizens from unnecessary arrest and detention.
• To protect citizens from double jeopardy.

The object of Fundamental Rights under the Indian Constitution has been to place the citizens at centre stage and make the State accountable (People’s Union for Civil Liberties vs Union of India, 2005, SC).

Against whom Fundamental Rights can be claimed? –

The Fundamental Rights are generally available against the State. Now what does the term ‘State’ mean? It represents any State of a country, any country itself as generally used in International Law or anything else. Article 12 of the Constitution of India clearly defines the term ‘State’ for the purpose of Fundamental Rights. As per Article 12, the term State includes-

1. The Government and Parliament of India,
2. The Government and Legislature of any State,
3. All Local Authorities (Local Self Government) and
4. Other Authorities within the territories of India or under the control of the Central Government.

Article 12- Definition.—In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Protection of the Fundamental Rights-

The Courts that is the Supreme Court and the High Courts acts as the protector and guardian of these rights. Courts also act as the interpreter of the Fundamental Rights. The Courts have shown a very liberal, creative, and descriptive approach in the interpretation of the Fundamental Rights.

The Fundamental Rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and protection of his Fundamental Rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and duty of this Court to uphold those rights. This court would naturally refuse to circumscribe them or to curtail them except as provided by the constitution itself (Daryao vs.  State of Uttar Pradesh, 1961, SC).

Fundamental Rights under the Indian Constitution-

Part III (Article 12-35) of the Constitution of India pertains to the Fundamental Rights of the citizens. These rights are as follows:

1. Right to Equality (Article 14-18).
2. Right to Freedom (Article 19-22).
3. Right against Exploitation (Articles 23 and 24).
4. Right to Freedom of Religion (Article 25-28).
5. The Cultural and Educational Rights (Articles 29 and 30).
6. Right to Property (Article 30-A, 31-A, 31-B, 31-C).
7. Right to Constitutional Remedies (Article 32-35).

Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution (Nar Singh Pal vs Union of India, 2000, SC).

Source- 1. The Constitution of India, Bare Act

2. Indian Constitutional Law by M.P.JaIn.