The success or failure of a democracy depends largely on the extent to which civil liberties are enjoyed by the citizens in general. A democracy aims at the maximum development of the individual’s personality, and thepersonality of the individual is inseparablybound with his liberty. Only a free society can ensure the all-round progress of its members which ultimately helps the achievement of human welfare. Thus, every democracy pays special attention to securing this bare objective to the maximum extent without, at the same time, endangering the security of the state itself. A common device that is adopted by most of them for this purpose is to incorporate a list of fundamental rights in their constitutions and guarantee them from violation by executive and legislative authorities.
The Indian constitution contains the basic principle that every individual is entitled to enjoy certain rights as a human being and the enjoyment of such rights does not depend upon the will of any majority or minority. No majority has the right to abrogate such rights. In fact, the legitimacy of the majority to rule is derived from the existence of these rights. These rights include all the basic liberties such as freedom of speech, movement and association, equality before law and equal protection of laws, freedom of religious belief and cultural and educational freedoms. The constitution has classified these rights into seven categories and one of them is the right to constitutional remedies which entitles every aggrieved person to approach even the Supreme Court of India to restore to him any fundamental right that may have been violated. It is, thus, a basic affirmation of the Constitution that the political system that it establishes should provide conditions favourable for the maximum development of the individual’s personality. The framers of the Constitution were conscious of the fact that in the absence of the enjoyment of the above mentioned rights, such development of the personality was impossible and democracy would sound an empty word. Having spent most of their lives under a foreign rule and having fought relentlessly for the enjoyment of these rights by themselves, it was only natural that they should have wanted to embody them in the Constitution they framed for the establishment of a democratic political order. They hoped to build this political order on the firm foundation of the freedom of political competition. The prime importance of these rights is that while the will of the majority decides how these freedoms are to be implemented, the existence of the freedoms themselves is not subject to that will. On the contrary, these freedoms set the conditions under which the will of the majority is to be formed and exercised.
It must be stressed, however, that the fundamental freedoms guaranteed to the individual under the Constitution are not absolute. Individual rights, however, basic they are, cannot override national security and general welfare. For, in the absence of national security and general welfare, individual rights themselves are not secure. Freedom of speech does not mean freedom to abuse another; freedom of movement does not mean freedom of physical attack on others. The Constitution has made express provisions dealing with such limitations of fundamental rights so that those who seek to enjoy the rights may also realise the obligation attending them.
Public and Private Rights
The rights which were thus selected by the Constituent Assembly fall broadly into two categories-public and private-but both have the same purpose in view, namely, to put an end to arbitrary rule. Among the public or political rights were the right often to choose their rulers, the right to hold them responsible for their conduct, the right to share in law-making and the right to bear arms. Among the private rights were the right to personal freedom, the right to freedom of religious belief, the right to thought and expression, and the right to quality and to the possession and use of property.
WHAT ARE ‘JUSTICIABLE’ AND ‘NONJUSTICIABLE’ RIGHTS?
The real problem that confronted the framers of Indian Constitution was how to limit their selection of rights to certain categories only. What rights were fundamental and what are not, and why? If the rights of life, liberty and property were fundamental, what about right to employment and education? Has not the traditional concept of fundamental rights in its individualistic setting undergone a change in the modern era of the welfare State? The framers had no doubt about the answers to these questions. They were quite conscious of the change in the character of the modern state. They knew that the age of the American Bill of Rights which believed in the “perfectibility of man and the malignancy of Government” had gone for ever. And yet, it was a task of utmost difficulty. This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence, they divided these rights into two categories, justiciable and non-justiciable. Justiciable rights are those which can be enforced by a court of law. Part III of the Constitution which is entitled “Fundamental Rights” contains justiciable rights like the right of life, liberty and property. Part IV, “The Directive principles of State Policy, contains non-justiciable rights such as right to employment and education. The citizen has no judicial remedy if he is denied the enjoyment of these rights.
Fundamental Rights in India-
- Right to Equality
- Right to Freedom
- Right against Exploitation
- Right to Freedom of Religion
- Cultural and Educational Rights.
- Right to Constitutional Remedies