Human Rights and Fundamental Rights

It was during the French Revolution of 1789 that ideas of equality and liberty started taking concrete shape. It was considered that all humans, irrespective of any condition, possessed some inherent rights by virtue of being born human. All human beings enjoy some basic rights, universal to all without any discrimination. These basic rights are what is referred to as Human rights.

The grotesque and inhuman activities of the Second World War had an impact on people around the world. Millions of jews were massacred without mercy and in the cruelest way possible, it was one of the most heinous crimes ever committed in the history of mankind. It was no longer possible to live in a world where humans could be treated in such inhuman manners. This thought led to the development of formal law on human rights.

Human rights are those basic and inherent rights that all human beings are considered to be born with. It was the Universal Declaration of Human Rights adopted in 1948, that popularised the concept of human rights all around the world. It outlines a consensus against practices like slavery, genocide, discrimination, inequality, war, freedom of expression, etc. Human rights is an abstract philosophical concept, which guarantees basic liberty and dignity to all human beings. And these rights apply to human beings irrespective of their nationality, gender, race, etc. It is an attempt to view all human beings as equal, without discrimination and prejudice. Human rights are essential for any individual to lead its own life with dignity and freedom. These are inalienable and unalterable rights. It can be said that to deny someone human rights would be against humanity.

Read Also: Human Rights and Right to Education

So what are fundamental rights? It can be said that human rights is a rather broad and general concept whereas fundamental rights are those rights which are considered to be fundamental for a citizen in a particular country. Fundamental rights are the rights given to citizens by law or any other authority and are guaranteed rights of a citizen. Fundamental rights have a narrower and specific scope.

The trend for guaranteeing certain rights to the citizen was started with the Magna Carta in 1215, then the Declaration of the rights of Man and Woman in France and then American Independence followed by the Bill of Rights. With the popularisation of Liberalism, governments recognized their role in the promotion of human rights.

Various countries of the world, especially with a written constitution provide for fundamental rights to the citizens. These rights are more technical and formalistic and are placed under the protection of the supreme law of the land.  For example, the US Constitution inserted a Bill of Rights that guaranteed its citizens certain fundamental human rights. Thomas Jefferson said, “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” The reason why certain human rights, which are basic and inherent are enlisted and protected under the constitution or so is to ensure that they cannot be done away by ordinary means of lawmaking. So the concept of fundamental rights, enforces human rights and ensure that no one is denied these basic rights. Governments cannot be trusted, and therefore it is important that the rights of citizens are protected under a sanctioned authority. Therefore, in most countries that provide for fundamental rights, there is usually a redressal mechanism so that these rights are not just on paper but its enjoyment is completely ensured.

Justice Jackson rightly pointed out the purpose of incorporation of fundamental rights in the US Constitution, “The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy; to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The Indian Supreme Court in Golak Nath v. State of Punjab stated, “The declaration of the fundamental rights of the citizens is inalienable rights of the people. The Constitution enables an individual to oppose successfully the whole community and the state to claim his right.” The Indian Constitution guarantees liberty, equality, fraternity in the Preamble itself. Fundamental rights constitute the basic feature of the Indian Constitution i.e. they can never be amended by the Parliament. Rights and freedoms form the bedrock of any Democracy. No democracy can function without respecting the rights and liberties of every individual, without any discrimination whatsoever.

Unlike human rights, fundamental rights are not absolute. There are certain ‘reasonable’ restrictions imposed on them on several grounds ranging from public safety to morality to health. As fundamental rights are under the discretion of State, there is no guarantee that they will always be considered supreme. It is not to undermine the authority of fundamental rights, but as fundamental rights derive their power from law(or Constitution), they can be modified or abridged. In some cases, like Emergency provisions or under the garb of National security a bar can be placed on fundamental rights. It is under these circumstances that we do not find human rights and fundamental rights to be on the same page. A country may choose not to guarantee some essential human rights under fundamental rights, does that mean that the human right ceases to exist? Human rights of an individual always exist, as it comes naturally to every individual and they do not need the validity or sanctity of a law to allow an individual to enjoy these rights. In an ideal world this could have worked, but because of exploitation, power politics, majoritarianism and other selfish reasons, a need arises to guarantee these rights in the way of Fundamental rights.

Dewangi Sharma

ILS Law College, Pune

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