Difference Between Constitutional Rights And Fundamental Rights

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Index

  1. Introduction 
  2. Understanding Constitutional And Fundamental Rights In India
  3. The Scope Of Constitutional And Fundamental Rights In India
  4. Classification Of Constitutional Rights
  5. Classification Of The Six Fundamental Rights
  6. The Amendability Of constitutional And Fundamental Rights
  7. Constitutional And Fundamental Rights During Emergencies
  8. Restrictive Clauses On Constitutional and Fundamental Rights
  9. Remedies For The Denial Of Rights
  10. Examples Of Constitutional And Fundamental Rights
  11. Conclusion 

Introduction 

The concept of rights emerged from protests against the oppression imposed by dominant groups in society. Rights are designed to protect individuals from the irresponsible and arbitrary exercise of power by the state or ruling class. The Constitution of India, established in 1950, is a supreme law that encompasses various essential rights, including fundamental rights, directive principles of state policy (DPSP), and fundamental duties.

The Indian Constitution is a unique legal document that enshrines a special kind of norm and stands at the top of the normative hierarchy. Among all the rights incorporated within it, fundamental rights are the most important, followed by other constitutional rights. Although fundamental rights are a subset of constitutional rights, they are specifically included in Part III of the Constitution to give exclusive recognition to inherent human dignity and the equal and inalienable rights of all members of the human family. This recognition forms the foundation of freedom, justice, and peace in the world.

After independence, as India transitioned to a welfare state, certain rights were deemed fundamental for a dignified life. For example, the right to equality without discrimination and the right to freedom are essential for the dignified survival of individuals. However, the overall concept of rights extends beyond just fundamental rights.

Understanding Constitutional And Fundamental Rights In India

Constitutional rights are those specifically outlined in a nation’s Constitution, granted to every citizen. The Preamble of the Indian Constitution exemplifies this, stating, “We, the people of India… do hereby adopt, enact and give to ourselves this Constitution.” Unlike fundamental rights, constitutional rights are not universal for all individuals. For example, the right to vote, guaranteed under Article 326, is a constitutional right available only to Indian citizens over 18 years of age.

Part III of the Indian Constitution details fundamental rights, ensuring basic human rights and liberties for all individuals in India. These rights also include welfare measures for marginalised groups to promote equality. Women, children, socially and economically disadvantaged classes, Scheduled Tribes, and other backward classes benefit from these rights, which address historical injustices. Provisions like Article 16 (reservation) and Article 17 (abolition of untouchability) exemplify this.

Fundamental rights apply to both citizens and, in some cases, non-citizens. For instance, Article 14 guarantees the right to equality for all, regardless of religion, race, caste, sex, or place of birth. The significance of these rights is evident as they remain protected even during emergencies, with the right to life and personal liberty under Article 21 and protection against state convictions under Article 20 remaining intact.

 

The Scope Of Constitutional And Fundamental Rights In India

Constitutional rights have a limited scope in terms of applicability and judicial interpretation. However, they encompass a broad range of rights and freedoms. Fundamental rights are a subset of constitutional rights, guaranteed under a specific part of the Indian Constitution. Thus, while constitutional rights cover a wide variety of rights, their application is narrower compared to fundamental rights.

Fundamental rights have a broader scope than general constitutional rights. Indian laws are subject to judicial interpretation, and higher courts have consistently expanded the scope and applicability of fundamental rights. Article 13 of the Constitution prohibits the state from enacting laws that violate the fundamental rights outlined in Part III. Any such laws, whether enacted before or after the Constitution’s commencement, are void to the extent of their inconsistency with fundamental rights. The term ‘law’ in this context is broadly defined to include ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages within India. Consequently, any statute, rule, regulation, or amendment that infringes on fundamental rights can be immediately invalidated.

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Classification Of Constitutional Rights

Constitutional rights can be broadly categorised into four types: (i) civil rights, (ii) political rights, (iii) economic rights, and (iv) social rights.

Civil rights encompass the rights, powers, immunities, and privileges granted to citizens simply by virtue of their citizenship. These rights are provided to all individuals, irrespective of gender, class, caste, creed, race, ethnicity, religion, nationality, or any other personal characteristic. Civil rights ensure that all citizens within a nation’s territorial boundaries can live peacefully and with dignity.

Certain examples of civil rights guaranteed under the Indian Constitution include:

Right to Vote (Articles 325 and 326): Every citizen of India who is 18 years of age or older has the right to vote without any discrimination based on religion, race, caste, or sex.

Right to a Fair and Speedy Trial (Articles 20 and 21): Article 20 provides every citizen the right to a fair trial, including protection against self-incrimination, ex-post facto laws, and double jeopardy. To learn more about a fair trial, refer here.

Right to Be Part of Government Services (Article 309): Citizens have the right to participate in government services under Article 309.

Right to Public Education (Articles 21A and 45): The Constitution guarantees the right to public education through Articles 21A and 45.

Right to Use Public Facilities (Article 21): Article 21 ensures citizens have the right to use public facilities. To know more about civil rights under the Indian Constitution, refer here.

Political rights enable citizens to participate in the political processes and governance of the country. Important political rights under the Indian Constitution include the right to criticise the government, the right to vote, the right to contest elections, the right to hold public office, the right to form political parties, and the reservation of seats for certain classes in Parliament and legislative assemblies.

Economic rights ensure the economic security of every citizen. These rights include the right to work, the right to a good working environment, the right to proper wages, and the right to food. To learn more about economic rights under the Constitution, refer here.

Social rights are essential for meeting societal demands and promoting social inclusion and solidarity. Social rights under the Indian Constitution include the right to healthcare services, the right to social protection, the right to employment, the right to free legal aid, and specific social rights for minority groups.

Classification Of The Six Fundamental Rights

  1. Right to Equality (Articles 14-18)

Article 14: Ensures equality before the law and equal protection of the laws within the territory of India.

Article 15: Prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.

Article 16: Guarantees equality of opportunity in matters of public employment.

Article 17:Abolishes “untouchability” and forbids its practice in any form.

Article 18: Abolishes titles, except military and academic distinctions.

  1. Right to Freedom (Articles 19-22)

Article 19: Guarantees six freedoms: Freedom of speech and expression, Freedom to assemble peaceably without arms, Freedom to form associations or unions, Freedom to move freely throughout the territory of India, Freedom to reside and settle in any part of India, Freedom to practise any profession or to carry on any occupation, trade, or business.

Article 20: Provides protection in respect of conviction for offences, including protection against ex-post facto laws, double jeopardy, and self-incrimination.

Article 21: Guarantees the right to life and personal liberty, except according to the procedure established by law.

Article 22: Provides protection against arrest and detention in certain cases, including the right to be informed of grounds of arrest and the right to consult a legal practitioner.

  1. Right against Exploitation (Articles 23-24)

Article 23: Prohibits human trafficking and forced labour.

Article 24: Prohibits employment of children below the age of 14 in factories, mines, or other hazardous occupations.

  1. Right to Freedom of Religion (Articles 25-28)
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Article 25: Guarantees freedom of conscience and free profession, practice, and propagation of religion.

Article 26: Grants the freedom to manage religious affairs.

Article 27: Prohibits compelling any person to pay taxes for the promotion of any particular religion.

Article 28: Prohibits religious instruction in educational institutions wholly maintained by state funds.

  1. Cultural and Educational Rights (Articles 29-30)

Article 29: Protects the interests of minorities by allowing them to conserve their language, script, and culture.

Article 30: Provides minorities the right to establish and administer educational institutions of their choice.

  1. Right to Constitutional Remedies (Article 32)

Article 32: Provides the right to approach the Supreme Court (and High Courts under Article 226) for enforcement of fundamental rights. This article is known as the “heart and soul” of the Constitution, empowering citizens to seek redressal for the violation of their fundamental rights.

The Amendability Of constitutional And Fundamental Rights

The basic structure doctrine emerged from the landmark case of Kesavananda Bharati v. State of Kerala (1973). In this case, the Supreme Court identified key constitutional elements that constitute the basic structure, including the supremacy of the Constitution, the unity and sovereignty of India, democratic principles, republicanism, secularism, the federal character of the Constitution, the separation of powers, and fundamental rights. Any constitutional amendment that violates this basic structure can be invalidated by the Court.

While Parliament has the power to amend any part of the Constitution, amendments affecting fundamental rights must be approached with caution to avoid violating the basic structure of the Constitution. The basic structure includes the various rights guaranteed in Part III of the Constitution, along with the Directive Principles of State Policy (DPSP) in Part IV, which aim to establish a welfare state.

Constitutional And Fundamental Rights During Emergencies

In certain emergency situations, the rights guaranteed in the Indian Constitution may need to be suspended. Part XVIII of the Constitution outlines the emergency provisions, which include three types of emergencies: (i) National emergency, (ii) State emergency, and (iii) Financial emergency.

During an emergency, constitutional rights are generally not suspended. For example, Article 226, which allows individuals to approach the courts for the enforcement of their rights, remains in effect. Rights that are not suspended, such as the right to life under Article 21, can still be enforced through the courts.

When an emergency is declared by the President, fundamental rights are suspended for the duration of the emergency. Article 359 of the Constitution specifies that all rights granted in Part III of the Constitution, except for Article 20 and Article 21, are suspended during an emergency. This suspension also applies to all court proceedings for the enforcement of these rights. Article 20 concerns the rights of individuals in relation to convictions, while Article 21 pertains to the right to life and personal liberty.

Additionally, Article 32(4) stipulates that fundamental rights can only be suspended during a presidentially declared emergency and cannot be suspended for any other reason not specified in the Constitution.

Restrictive Clauses On Constitutional and Fundamental Rights

Unrestricted rights can lead to anarchy and absolutism, making it essential to impose certain restrictions on fundamental, constitutional, and statutory rights. These restrictions help harmonise rights with public objectives and balance conflicting rights.

Constitutional rights can be restricted through new legislation and reasonable restrictions specified within the provisions themselves. For example, the right to citizenship under Part II of the Constitution is limited to those domiciled in India for at least five years at the commencement of the Constitution or those with at least one Indian parent. No other individuals can claim citizenship under Article 5 of the Indian Constitution. The Citizenship (Amendment) Act, 2019 introduces new criteria and restrictions for acquiring Indian citizenship. It allows illegal migrants from Afghanistan, Bangladesh, and Pakistan who are Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians to become citizens after five years of residence. However, this right does not extend to migrants from Nepal, Bhutan, and Sri Lanka or to people of the Islamic faith.

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While the primary purpose of restricting rights is to balance conflicting rights, certain emergency situations may require curtailing rights to maintain control. For instance, the right to freedom of movement granted by Article 19(1)(d) was restricted during the COVID-19 pandemic. Article 19(5) allows restrictions on this right in the interest of the general public. To protect public health and contain the virus, lockdowns were imposed under Section 144 of the Code of Criminal Procedure, 1973.

Remedies For The Denial Of Rights

The Latin maxim “Ubi jus ibi remedium” means that where there are rights, there must be a remedy. Rights without remedies are ineffective, as the inability to enforce a right upon its infringement nullifies the purpose of having that right.

To enforce constitutional rights or seek remedies for their denial, an individual can invoke Article 226 of the Constitution. This allows the person to approach the High Court with jurisdiction to hear the matter and issue writs, directions, or orders to any government, authority, or individual who has infringed upon these rights.

When a fundamental right is violated, the affected person can approach the Supreme Court under Article 32 of the Indian Constitution. Article 32(1) states that for the enforcement of fundamental rights listed in Part III of the Constitution, proceedings may be initiated in the Supreme Court. The Court has the power to issue any of the five writs—habeas corpus, mandamus, prohibition, quo warranto, and certiorari—along with any other necessary orders or directions to enforce these rights.

It is important to note that Article 32 can only be invoked to enforce the rights guaranteed in Part III of the Constitution.

Examples Of Constitutional And Fundamental Rights

Constitutional Rights

  1. Right to Vote (Articles 325-326): The right to vote is a constitutional right outlined in Part XV of the Indian Constitution. Article 325 ensures no discrimination based on religion, race, caste, or sex in eligibility to vote for Parliament or state legislatures. Article 326 grants voting rights to every Indian citizen aged 18 years or older, known as adult suffrage.
  2. Right to Property (Article 300A): Article 300A guarantees everyone the right to property, which can only be deprived by lawful authority.
  3. Right to Approach High Court for Violating Rights: Article 226, Chapter V of Part VI of the Constitution, grants individuals the right to obtain writs, orders, or directions such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

Fundamental Rights

  1. Right to Privacy: While not directly listed as a fundamental right, the right to privacy has been recognized through a broader judicial interpretation of Article 21 (right to life and personal liberty), as seen in the case of Justice K. S. Puttaswamy (Retd.) v. Union Of India And Ors. (2018).
  1. Right to Education: Originally part of constitutional rights, the right to education became a fundamental right after the 86th Constitutional Amendment Act, 2002, under Article 21A. It guarantees free and compulsory education for every citizen below 14 years of age.

The right to the internet, while not explicitly stated as a fundamental right, was encompassed within the scope of Article 21 by the court in the case of Faheema Shirin v. State of Kerala (2019).

Conclusion 

It’s crucial to understand that while fundamental rights are an integral component of the Indian Constitution, they cannot be entirely distinguished from constitutional rights. They are enshrined in Part III of the Constitution, making them constitutional rights as well. However, not all constitutional rights are categorised as fundamental rights. The rights outlined in Part III hold a distinct significance and prominence compared to other rights mentioned elsewhere in the Constitution. Nonetheless, for India to function effectively as a welfare state, all rights mentioned in the Constitution, including those beyond fundamental and constitutional rights, hold equal importance.

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