FUNDAMENTAL RIGHTS

Fundamental Rights are the basic inherent, inalienable human rights,

provided in part III of the constitution, without which it is not possible
to live with dignity.
What is a Right?
• A constitutional right is one which flows specifically and directly from
the constitution of a country (or any other entity) a legal right on the
other hand can flow from any law of that place.
• So it would safe to say that all constitutional rights are legal
rights but all legal rights are not constitutional rights.
• The SC in State of Raj. V. UOI, AIR 1977 SC 1361- Legal rights are
correlatives of legal duties and are defined as interests whom the law
protects by imposing corresponding duties on other.
• But in a generic sense, the word right is used to mean immunity from
legal power of another, immunity is exemption from the power of
another in the same way liberty is exemptions from right of another.
Origin and Development of Fundamental
Rights
• As early as 1214 the English people took certain assurance from King
John for respect of the then ancient Liberties.
• The Magna Carta is the evidence of their success, which is a written
document. This is the first written document relating to the
fundamental rights of the citizens.

• Thereafter from time to time the king had to accede too many rights
to his subjects.
• In 1689 the Bill of Rights was written consolidating all rights and
liberties of the English people.
Contd….
• In France 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 Man and Citizens of France, Americans
incorporated the Bill of Rights in their Constitution.
• The Americans were first to give Bill of Rights a Constitutional status.
• Thus, when the constitution of India was being framed the
background for Incorporation of Bill of Rights was already present.
Contd….
• The framers took inspiration from this and incorporated a full Chapter
in the Constitution dealing with fundamental right.
• But the declaration of fundamental rights in the Indian Constitution
is the most elaborate and comprehensive yet framed by any state.
• The inclusion of a chapter of Fundamental Rights in the part III of the
Constitution of India is in accordance with the trend of modern
democratic thought.
• The idea being to preserve that indispensable condition of free
society.
Contd…
• In West Virginia State Board of Education v. Burnett Jackson J. 319
US 628:87 Led 1928, explaining the nature and the purpose of Bill of
Rights the court held:
• “the very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majority and to establish them as legal
principles to be applied by the Courts.
• One`s right of life, liberty and prosperity, free speech, free press,
freedom of worship and assembly and other fundamental rights
may not be submitted to vote, they depend on the outcome of no
election.”
Magna Carta
• Refer the Video and PDF.
• Most of the issues dealt with in Magna Carta sought to address problems that
had arisen not in King John’s reign alone, but over the past half-century under the
rule of the Angevin kings.
• He mercilessly exploited his barons and cruelly destroyed some baronial families
in his attempts to raise sums to mount a military campaign in France and regain
Normandy.
• Following the failure of a complex military operation in France, John returned to
England in 1214 and provoked rebellion by imposing scutage – a form of taxation
– on his barons in an attempt to pay for his thwarted war effort.
• In January 1215, thirty-nine barons rebelled against John and subsequently took
control of London, forcing John to negotiate a peaceful resolution to the crisis
and agree to Magna Carta on 15 June 1215.
Contd…
• Based on similar existing documents, but unprecedented in its scope,
Magna Carta forced the king to govern in accordance with established
laws and sought to prevent the king from ignoring the advice of his
barons when taking important political decisions. J
• John refused to accept the restraints that Magna Carta placed upon
kingship, and it was only in 1225, during the reign of John’s son,
Henry III, that a revised version of Magna Carta came to be accepted
as a piece of legislation.
BILL OF RIGHTS
• A determined attempt by King James II (r. 1685–88) to reinstate
Catholic worship in England, coupled with his increasingly
authoritarian responses to resistance, resulted in a wave of unrest in
1688.
• In November, a Dutch force led by Prince William of Orange (the
future King William III, r. 1689–1702) invaded England in support of
the king’s opponents. After James’s army had crumbled and he had
fled to France, William (husband of James’s elder daughter, Mary)
summoned a new Parliament, the ‘Convention’.
Contd…
• On 13 February, both Houses went together in Whitehall, where they
offered William and Mary the Crown, together with their Declaration
of Rights, in a way that was intended to suggest that the offer was
conditional on William and Mary’s assent to the Declaration.
• The text of the Declaration was subsequently incorporated, with
some amendments, into an Act of Parliament, unusually known as the
Bill of Rights.
Key Features of BOR
• power of suspending of laws or the execution of laws by regal
authority without consent of Parliament is illegal.
• dispensing with laws or the execution of laws by regal authority as it
hath been assumed and exercised of late is illegal.
• Levying money by royal prerogative without the grant of Parliament is
illegal. This meant that the monarch could no longer levy taxes. Only
Parliament could do this.
• It is illegal to raise or keep a standing army in peacetime without
Parliament’s consent.
Contd…
• election of Members of Parliament ought to be free.
• Freedom of speech in Parliament ought not to be impeached or
questioned in any court or place out of Parliament. (The doctrine of
Parliamentary privilege)
Indian Perspective
• Fundamental Rights were deemed essential to protect the rights and
liberties of the people against the encroachment of the power
delegated by them to their Government.
• They are limitations upon all the power 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.