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.
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.”
Definition of Fundamental Rights
In this part, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
So in this article constitution provides definition of ‘the state’, the word which is widely used in the various fundamental rights.
State as provided under Article 12 of the Constitution has four components:
- The Government and Parliament of India-
- Government means any department or institution of department.
- Parliament shall consist of the President, the House of People and Council of States
- The Government and Legislature of each State
- State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.
- Local Authorities within the territory of India
- Authority means the power to make rules, bye- laws, regulations, notifications and statutory orders.
- Power to enforce them.
- Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.
- Other Authorities
- Authorities other than local authorities working
within the territory of India or,
- Outside the territory of India.
* In Sukhdev v/s Bhagatram , LIC , ONGC ANDIFC were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy
- Power to make regulations;
- Regulations have force of law.
*In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.
Clearance of five tests
In Union of India v/s R.C.Jain, to be a local authority, an authority must fulfill the following tests-
- Separate legal existence.
- Function in a defined area.
- Has power to raise funds.
- Enjoys autonomy.
- Entrusted by a statute with functions which are usually entrusted to
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .It has gained wider meaning which ensures that Part-III can be applied to a larger extent.