Various Kind of Rights

Natural Rights:  These are universal rights which are inherent in every individual being a part of human nature. They are not conferred by law but only recognized and made enforceable by law. For example, right to life.

Human Rights: Human rights are similar to natural rights in the sense that they are universal and are intrinsic in human nature. They are needed for dignified human life and are enjoyed irrespective of social, political and other considerations. They are retained by an individual on the basis of his/her being a human. They are contained in United National Universal Declaration of Human Rights, 1948.

Civil Rights: These are the rights that citizens of a country enjoy and are conferred by the Constitution or the law of the country. Civil rights may differ from one country to another while human rights are universally enjoyed by all.

Constitutional Rights: They are right enshrined in the Constitution. Some enjoy special status as Fundamental Rights and some other do not enjoy such status- for instance, outside part III of the Indian Constitution (other than Fundamental Rights)

Fundamental Rights: They are a branch of civil rights and are given higher importance in India as they are defended by the Supreme Court directly. Some Fundamental Rights are confined to citizens only while others are open to all. For example, Art. 15, 16, 19, 20 and 29 in the Chapter on Fundamental Rights in the Indian Constitution (Part III) are available to India citizen only. They are essential for human development, democracy and social progress.

SALIENT FEATURES OF FUNDAMENTAL RIGHTS IN INDIAN CONSTITUTION

1. Integral part of the Constitution: Fundamental Rights have been made an integral part of the Constitution and hence cannot be taken away by ordinary legislation. Any law passed by any legislature in the country would be declared null and void if it is derogatory  to the rights guaranteed by the Constitution.

2. Comprehensive and detailed:  The rights enumerated in the Part III of the Constitution are very elaborate. Each Article has been described with its scope and limitations.

3. Lack of social and Economic Rights: The Constitution guarantees only civil rights and freedoms. Rights like Rights to work , Right to Health, and Right to Social Security have not been included in the Fundamental Rights.

4. Rights are qualified: The fundamental rights of the people are not absolute except the right against untouchability. They are qualified with limitations and reasonable restrictions in the collective interest of the society. While describing the scope of each right, the Constitution also describes its limitations. These have been laid down for protecting 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, for certain laws necessary for socio-economic reforms.

5. Enforceability of Rights: Fundamental Rights have been made Justiciable. Justiciable rights means 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 the protection and enforcement of his/her Fundamental Rights. Thus, the Constitution not only grants but also guarantees these rights. There are elaborate instruments to protect these rights, such as Right to Constitutional remedy, Public Interest Litigation, Human Rights Commissions.

6. Fundamental Rights are amendable: Fundamental Rights are not sacrosanct and permanent. Parliament has the power to amend any part of the Constitution including Fundamental Rights. The Fundamental Rights, despite having inviolable nature, can be amended by the Parliament, subject to the ‘basic structure’ of the Constitution. The Parliament has, in practice, exercised this power on several occasions.

7. Provision for the Suspension of Rights: The Constitution provides for suspension of all or any of the Fundamental Rights during an emergency. However, such a suspension automatically ends when the emergency ceases or when the President withdraws it.

8. Constitutional superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and the Directive Principals of State when the President withdraws it.

9. Special Rights for the minorities: The Fundamental Rights guarantee some special rights to the minorities of various kinds. This is apart from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted to them. It abolishes untouchability and makes it a crime. It has also granted special protections to women, children and the weaker sections of society.

10. No natural rights: The chapter on Fundamental Rights is not based on theory of ‘natural rights’. Natural rights are said to belong to man by ‘nature’ and are inalienable from him. It is claimed that man possessed these rights even before the (concept of) State came into existence. Accordingly, natural rights do not owe their existence to their enumeration in the constitution. The Constitution of India does not give any recognition to natural or un-enumerated rights. People of India are guaranteed only those rights which are mentioned in Part III of the Constitution.

11. Right to Property not a Fundamental Rights: Right to property which is a feature of particularly liberal democracies is not guaranteed by the Constitution of India. Actually, the original Constitution as in 1949 granted to the citizens the fundamental right to property. However, because of the hindrances posed by this rights in the way of implementation of some socio-economic reforms, right to property was deleted from the list of Fundamental Rights. It was made a legal right under Article 300A. Thus, now right to property is a legal right and not a Fundamental Right of the people.

Now, we shall see the provisions in Part III of Constitution in the sequence of articles.

Article 13. Laws inconsistent with or in derogation of the Fundamental Rights.

1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

3. In this article, unless the context otherwise requires--
a.  “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
b.  “law in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such or any part thereof may not be then in operation either at all or in particular areas.

4.  Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

Article 13 provides for the doctrine of judicial review and the definition of ‘law’. It declares that all laws that are inconsistent with or in derogation of the Fundamental Right shall be void. Clause 2 of this Article says that “the State shall not make any law which takes away or abridges the rights conferred by this Part and law made in contravention of this clause shall, to the extent of the contravention, be void.”This clause of Art. 13 along with some other articles grants judiciary the power to review laws made by the Legislature and the Executive orders.

On the other hand, Clause 3(a) of the Article provides the meaning of laws. It says that unless the context otherwise requires, the “laws” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India. That means if any of the above Ordinance, order, etc. violates any of the Fundamental Rights, then they will be declared null and void. This definition is provided for the purpose of actual operation of Part III of the Constitution only because the Fundamental Rights provided therein are for the most part guaranteed against State action. It is to be noted that the ‘Constitutional Amendment’ is not included in the meaning of ‘law’, as shown below.

As seen above in clause 2, any law of Parliament which violates the Fundamental Rights will be void; but the Article 368 allows to amend part of the Constitution, including Fundamental Rights, the only exception ‘being structure’ of the Constitution. This is what the clause 4 in Article 13 says that “Nothing in this Articles shall apply to any amendment of the Constitution made under Article 368”. Article 368 deals with the power of Parliament to amend the Constitution and procedure thereof.

FUNDAMENTAL RIGHTS

Fundamental Rights available to any person on the soil of India, including foreigners (except the enemy aliens)

a. Art. 14. Equality before law and equal protection of laws.
b. Art. 20. Protection in respect of conviction for offences.
c. Art. 21. Protection of life and personal liberty.
d. Art. 21A. Right to education
e. Art. 23 and 24- Rights against exploitation.
f. Art. 25, 26, 27 and 28- Freedom of religion.