Tag: individual rights

Introduction The constitution of India, 1950 as of 2021, there are 25 parts with 448 articles and 12 schedules. This chapter of the constitution of India is very well described as the Magna Carta of India. Magna Carta term is derived from the Latin language meaning “Great Charter” and it holds great power because it was the first document to put in writing that no one was above the law not even the King. The inclusion of this chapter in the constitution is by the trend of modern thought, the idea is to preserve that which is an indispensable condition of a free society. The aim of having fundamental rights declares that certain elementary rights, such as the right to life, liberty, freedom of speech, freedom of faith, and so on, should be regarded as unalterable under all conditions and that the shifting majority in Legislation of the country should not have a free hand in interfering with these fundamental rights. History  As early as 1215 the English people exacted an assurance from King John for respect for the ancient liberties. The Magna Carta is evidence of their which is written document. Thereafter from time to time, the King had acceded to many rights to his subjects. In France, the Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable, and sacred rights of man. Following the spirit of the Magna Carta of the British and the declaration of the rights of the man and the citizen of France, the Americans incorporated the Bill of Rights into their constitution. The Americans were the first to give the Bill of Rights a constitutional status. Thus, when the constitution of India was being framed the background for the incorporation of the Bill of Rights was already present. The framers took inspiration from this and incorporated a full chapter in the Constitution dealing with fundamental rights. Schedule of Fundamental Rights The fundamental rights are incorporated in the Indian constitution and divided into the following six groups: – Right to Equality (Art 14-18) Right to Freedom (Art 19-22) Right against Exploitation (Art 23-24) Right to Freedom of Religion (Art 25-28) Cultural and Educational Rights (Art 29-30) Right to Constitutional Remedies (Art 32-35) The 44th Amendment has abolished the Right to property as a fundamental right as provided in Art 19(1)(f) and Art 31 of the Constitution, and hence Art 19(1)(f) and 31 has been omitted. Salient Features of Fundamental Rights Comprehensive and Detailed: The rights in the Part III of the constitution are very elaborate. Each Article has been described with its scope and limitations. Lack of social and Economic rights: The Constitution guarantees only civil rights and freedoms. Rights like the Right to work, the right to health, and the Right to Social Security have not been included in the Fundamental rights. Rights are qualified: The fundamental rights of people are not absolute except the right against untouchability. They are qualified with limitation and reasonable restriction in the collective interest of society. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down to protect the public health, public order, morality, and security of India. Some exceptions are also provided to fundamental rights through their non-applicability to members of security and law and order-related forces, during martial law and, certain laws necessary for socio-economic reforms. Enforceability of Rights: Fundamental rights have been made Justiciable. Justiciable rights mean if any of these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court or high courts for protection. There are elaborate instruments to protect these rights, such as the right to Constitutional remedy, Public Interest Litigation, and Human Rights commissions. Constitutional Superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principles of the State when the President withdraws it. Importance of Fundamental Rights Fundamental Rights are deemed essential to protect the rights and liberties of the people against the Government. They are limitations upon all the management of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments. Speaking about the Importance of Fundamental Rights in the historic judgment of Manika Gandhi Union of India, Bhagwati, J., observed: “The Fundamental rights represent to protect the dignity of the individual and create conditions in which every human being can fully develop his personality. They weave a ‘pattern of guarantee on the basic structure of human rights, and impose a negative obligation on the State not to encroach on individual liberty in its various dimensions” These rights are regarded as fundamental because they are essential for the attainment of the individual or his full intellectual, moral, and spiritual status. The advocates of inclusion of these rights in the Indian Constitution vest them with a sanctity that legislators dare not to violate so easily. The Doctrine of Severability and Eclipse The doctrine of Severability: It means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not entire statute. In R.M.D.C v. Union of India (AIR 1957 SC 628), the court observed that the intention of the legislature. The doctrine of Eclipse: It is based on the principle that a law that violates fundamental rights is not nullity or void ab initio but becomes only enforceable i.e., remains in a moribund condition. Such law exists for all past transactions, for rights and liabilities incurred before the constitution came into force, and for the determination of rights of persons who have not been given fundamental rights by the constitution e.g., non-citizens (Bhikaji the state of M.P AIR 1955 Sc 781) The doctrine of eclipse applies to a post-constitutional law Article 13(2) deals with post–constitution or future laws [while clause (1) deals with pre–constitution or existing law]. It…

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