Question

Explain in brief the nature of fundamental rights.

Answer 1

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Nature of Fundamental Rights:

(a) Most Elaborate:

One of the most conspicuous features of the Indian Bill of Rights is that it is the most elaborate chapter in the world. A full chapter containing twenty four articles is devoted to it. The voluminous size of the chapter is due to the enumeration of seven rights in the minutest details along with an elaborate set of limitations imposed upon them. Since the passage of 44th Amendment Act in 1978, right to property has ceased to exist as a Fundamental Right. It has been reduced to a mere legal right. As such, there are now six fundamental rights in the Constitution.

(b) Negative and Positive Rights:

Rights incorporated in the Indian Constitution are of two types—Negative and Positive. Negative rights comprise constitutional restrictions on the state. Article 10 forbids the state to confer any title, other than a military or academic distinction, on any individual. It hardly confers any right. It imposes a restriction on the legislative and executive branches of the government. Likewise Article 17 abolishing untouchability, removes a social evil. It hardly bestows a special privilege on the untouchables.

Right to freedom, right to acquire, hold and dispose off (Article 19) property and right to religion and cultural and educational rights fall in the category of positive rights. In fact, it is difficult to draw a very clear line of demarcation between the two, yet the hairsplitters of the constitution point out one difference. Negative rights are absolute, but positive rights are hedged with restrictions.

(c) Special Provision for their Enforcement:


These rights, both negative and positive, do not exist merely on the paper. They are guaranteed to the people as they are legally enforceable. A special right i.e., “right to Constitutional Remedies” has been introduced in the constitution to safeguard the rest of the fundamental rights. The Supreme Court is the guarantor and guardian of the fundamental rights. Even the High Courts, according to article 226, are empowered to issue writs for the enforcement of these rights, within the limits of their respective jurisdiction.

(d) They are not Absolute:

Unlike that of American Bill of Rights, our fundamental rights are not absolute in character. Not only constitution has hedged these rights with restrictions, even the Parliament has been authorized to impose restrictions, if it deems fit.

The Fundamental Rights are not merely restricted by the constitution. They can be further restricted by an amendment of the constitution. According to Article 33, the Fundamental Rights may be restricted or abrogated in their application to the members of Armed Forces or the forces charged with the maintenance of public order.

These provisions of Article 33 are applicable to ordinary police, responsible for the maintenance of public order as well. Article 34 which empowers Parliament to pass an Indemnity law legalizing acts done during the enforcement of these rights, may also be similarly suspended.

Besides, Parliament through procedure of amendment, can abrogate Fundamental Rights. The 24th and 25th amendments of the constitution (which curtailed right to private property and which eventually ceased to be Fundamental Right in 1976), for furtherance of Directive Principles pertaining to socialism, were upheld by the Supreme Court of India in its historic decision made on April 24, 1973. This further established that Fundamental Rights are not at all absolute as is presumed by some critics.

(e) All Rights not of Equal Weight:

All rights are not of equal weight. A hierarchy of values is discernible. In the words of Justice M. Hidyatullah in the Golak Nath case (1967) “the right to property ,is the weakest of all rights.”

Answer 2

The nature of fundamental rights:

• Fundamental Rights have been categorized into the six groups like Right to Justice, Right to Freedom, Right to Exploitation, Right to Religious Freedom, Right to Legal Remedies, and Cultural and Educational Rights.
• Rights are qualified: people's basic rights are not absolute except for the right of non-touch ability. We are eligible in the general interest of society with limits and fair constraints. The Constitution often defines the drawbacks when defining the reach of each privilege.

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