Evolution of Concept of Fundamental Rights

Theoretical overview

Fundamental rights are enshrined in part 3 of the constitution from article 12 to 35. The framers of the constitution derived inspiration from the constitution of United States of America that is the bill of rights. Some of the subject matters and features are borrowed from the US constitution. Part 3 of the constitution is rightly described as Magna Carta. The great charter of the liberty is commonly called Magna Carta. It is a charter of rights agreed to citizen of England on 15 June 2015. Fundamental rights are known as magna carta of the Indian constitution as it contains a very long and comprehensive list of justiciable fundamental rights. 

Fundamental rights are justiciable as it allows person to move the court for their enforcement if and when they are violated. They can approach the high court and the supreme court under section 226 and 32 respectively. Fundamental rights are guaranteed by the constitution to all persons without any discrimination. They are named as fundamental because they are guaranteed and protected by the constitution which is fundamental law of the land. They are fundamental also in the sense that they are most essential for all round development of the individuals. 

Motilal Nehru committee had demanded a bill of rights as far back as in 1928. The constitution listed the rights that would be special and protected and called them fundamental rights. These rights are so important that the constitution has separately listed them and made special provisions for their protection. The constitution itself ensures that they are not violated by the government. Fundamental rights are meant for promoting the ideals of political democracy the prevent the establishment of an authority and despotic rule in the country and protect the liberties in freedoms of the people against the invasion by the state the aim at establishing a government of laws and not of men

It is to be noted that fundamental right should not be confused with ordinary right as ordinary rights are protected and enforced by the ordinary law. They may be changed by the legislature by ordinary process of law but fundamental rights may only be changed by amending the constitution itself.

Initially there were seven fundamental rights namely –

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

But article 31 of the constitution which states the right to property was deleted from the list by the 4th amendment in the year 1978. It is now made a legal right under article 300a in part 12 of the Indian constitution. The fundamental rights are reduced from 7 to 6.

Important articles

1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

Article 300.A – Persons not to be deprived of property save by authority of law No person shall be deprived of his property save by authority of law

Important case laws

1. State of Madras vs Champakam Dorairajan,1951 – supreme court held that fundamental rights will prevail over DPSP. DPSP has to work as a supplement.
2. Selvi vs State of Karnataka,2010 – Narcoanalysis, polygraphy and brain finger printing tests done on accused without their consent were held violative of 20(3) because it was preventive of individual liberty.
3. Bijoe Emmanual vs State of kerela,1986 – no person can be forced to do something which is not allowed in his religion.
4. Romesh Thappar vs. State of Madras,1969 – the powers vested in the supreme court can be exercised for the enforcement of the fundamental right. The court cannot refuse it.
5. Hussainara Khatoon vs. State of Bihar,1979 – the supreme court held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in art 21.
6. Jagannath Baksh Singh vs. State of UP, 1962 – the application under article 32 may always be made first to the supreme court since article 32 is itself a fundamental right.

Points to remember

• Fundamental rights are enshrined in part 3 of the constitution from article 12 to 35.
• Part 3 of the constitution is rightly described fundamental rights as Magna Carta.
• Fundamental rights are justiciable as it allows person to move the court for their enforcement if and when they are violated. They can approach the high court and the supreme court under section 226 and 32 respectively.
• These rights are so important that the constitution has separately listed them and made special provisions for their protection.
• article 31 of the constitution which states the right to property was deleted from the list by the 4th amendment in the year 1978. It is now made a legal right under article 300a in part 12 of the Indian constitution. The fundamental rights are reduced from 7 to 6.