FUNDAMENTAL RIGHTS
The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and worship; equality
of status and of opportunity; and fraternity assuring the dignity of the individual”. With this object, the fundamental
rights are envisaged in Part III of the Constitution.
The Concept of Fundamental Rights
Political philosophers in the 17th Century began to think that the man by birth had certain rights which were
universal and inalienable, and he could not be deprived of them. The names of Rousseau, Locke, Montaesgue
and Blackstone may be noted in this context. The Declaration of American Independence 1776, stated that all
men are created equal, that they are endowed by their creator with certain inalienable rights: that among these,
are life, liberty and the pursuit of happiness. Since the 17th century, it had been considered that man has certain
essential, basic, natural and inalienable rights and it is the function of the State to recognise these rights and
allow them a free play so that human liberty may be preserved, human personality developed and an effective
cultural, social and democratic life promoted. It was thought that these rights should be entrenched in such a
way that they may not be interfered with, by an oppressive or transient majority in the Legislature. With this in
view, some written Constitutions (especially after the First World War) guarantee rights of the people and forbid
every organ of the Government from interfering with the same.
The position in England: The Constitution of England is unwritten. No Code of Fundamental Rights exists
unlike in the Constitution of the United States or India. In the doctrine of the sovereignty of Parliament as
prevailing in England it does not envisage a legal check on the power of the Parliament which is, as a matter of
legal theory, free to make any law. This does not mean, however, that in England there is no recognition of these
basic rights of the individual. The object in fact is secured here in a different way. The protection of individual
freedom in England rests not on constitutional guarantees but on public opinion, good sense of the people,
strong common law, traditions favouring individual liberty, and the parliamentary form of Government. Moreover,
the participation of U.K. in the European Union has made a difference. (See also the Human Rights Act, 1998).
The position in America: The nature of the Fundamental Rights in the U.S.A. has been described thus: The
very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by
the Courts.
The fundamental difference in approach to the question of individual rights between England and the United
States is that while the English were anxious to protect individual rights from the abuses of executive power, the
framers of the American Constitution were apprehensive of tyranny, not only from the executive but also from
the legislature. While the English people, in their fight for freedom against autocracy stopped with the establishment
of Parliamentary supremacy, the Americans went further to assert that there had to be a law superior to the
legislature itself and that the restraint of such paramount written law could only save them from the fears of
absolution and autocracy which are ingrained in the human nature.
So, the American Bill of Rights (contained in first ten Amendments of the Constitution of the U.S.A.) is equally
binding upon the legislature, as upon the executive. The result has been the establishment in the United States
of a ‘Judicial Supremacy’, as opposed to the ‘Parliamentary Supremacy’ in England. The Courts in the United
States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any
provision of the Bill of Rights.
The position in India: As regards India, the Simon Commission and the Joint Parliamentary Committee had
rejected the idea of enacting declaration of Fundamental Rights on the ground that abstract declarations are
useless, unless there exists the will and the means to make them effective. The Nehru Committee recommended
the inclusion of Fundamental Rights in the Constitution for the country. Although that demand of the people was
not met by the British Parliament under the Government of India Act, 1935, yet the enthusiasm of the people to have such rights in the Constitution was not impaired. As a result of that enthusiasm they were successful in
getting a recommendation being included in the Statement of May 16, 1946 made by the Cabinet Mission-
(which became the basis of the present Constitution) to the effect that the Constitution-making body may adopt
the rights in the Constitution. Therefore, as soon as Constituent Assembly began to work in December, 1947, in
its objectives resolution Pt. Jawahar Lal Nehru moved for the protection of certain rights to be provided in the
Constitution. The rights as they emerged are contained in Part III of the Constitution the title of which is
“Fundamental Rights”. The Supreme Court in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 held that
Part III of the Constitution protects substantive as well as procedural rights and hence implications which arise
there from must efficiently be protected by the Judiciary.
