What is so fundamental about fundamental rights?

Q. What is so fundamental about fundamental rights?


Fundamental rights are claims that are essential for the existence and development of individuals and are recognized by the State, and enshrined in the Constitution. These rights are fundamental because of two reasons. First, they are guaranteed and protected by the Constitution, which is the fundamental law of the land and the second, these are justiciable, i.e. enforceable through the courts.

They are ‘fundamental’ also in the sense that they are most essential for the all- round development (material, intellectual, moral and spiritual) of the individual.

  1. Some fundamental rights are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
  2. They are available against the arbitrary action of the State. A few are available against the State’s action as well as against the action of private individuals.
  3. Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
  4. They are justiciable in nature and people can move to courts for their enforcement.
  5. They are defended and guaranteed by the Supreme Court. Hence, the person can go directly to the Supreme Court, not necessarily by way of appeal against the judgement of the high courts.
  6. They are not absolute, but qualified i.e. that the state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts.
  7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution.
  8. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
  9. Their scope of operation is limited by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles).
  10. Their application to the members of the armed forces, paramilitary forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).
  11. Their application can be restricted while martial law is in force in any area. (Article 34)
  12. Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).

The Fundamental Rights guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These are common to most liberal democracies, such as equality before the law, freedom of speech and expression, etc. These basic human freedoms are inevitable for the growth of a nation and its people.

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