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History Of Fundamental Rights Included Under Part III Of The Constitution

By Karishmamulani | Views 15182 (author-49605-karishmamulani.html)

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In early 1215, English people were guaranteed with ancient liberties in the written form of document
known as Magna Carta by King John. This was the very first document which guaranteed liberties to
people. After this, in 1689, Bill of Rights was written for consolidating important rights and liberties
for English people. Fundamental rights enshrined under part III of the constitution are known as
Magna Carta of India.

In France, natural, inalienable rights and sacred rights of man are declared in France Declaration of
Rights of Man and the Citizen, 1789. Following the spirit of the Magna Carta of the British and the
Declaration of Rights of Man and the Citizen, the Americans incorporated Bill of rights in their
Constitution.[1]

When the framing of Indian Constitution was going on, makers if the Indian Constitution took the
inspiration from this American Bill of Rights, and incorporated Fundamental Rights guaranteeing
liberties to its citizen. Though the American Bill of Rights consist very few provisions, Indian
Constitution has elaborated fundamental rights most comprehensively yet by any other Country. As
discussed earlier, Fundamental Rights are considered very important against any encroachment of
the power delegated to their Government in the State.

Since early 1700, human thinking has been evolving around human being has some natural, basic,
inalienable rights. Certain rights which are elementary rights such as right to life, right to personal
liberty, freedom of speech, Freedom of religion and many more are inviolable in nature as we cannot
think without having those rights, human life can be termed as human life.

Through the time, these rights got recognition which already exist in nature itself and got the
protection of law. Many countries through various documents and provisions has provided these
rights as basic and fundamental which cannot be taken away unless there is due process of law.

In West Virginia State Board of Education V/s. Barnet[2] Jackson, J. explaining the nature and the
purpose of Bill Of Rights observed:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials to establish them as legal
principles to be applied by the Courts. One's right of life, liberty and property, to free speech, a free
press, freedom of worship and assembly and other fundamental rights may not be submitted to
vote, they depend on the outcome of no elections."

The chapter on Fundamental Rights, contained in Part III of the Indian Constitution, was not
incorporated as a popular concession to international sentiment prevalent after the conclusion of
the Second World War. It was the ardent desire and persistent demand of our freedom fighters and
Founding Fathers that a future Constitution of India should contain a guarantee of fundamental
entitlements for the people of India.[3]

A Bill of Rights, Part III enumerating Fundamental Rights, is a constant reminder that the powers of
the State are not unlimited and that human personality is priceless.

In this chapter researcher has covered how fundamental rights got recognized and got the
protection of law for the violation of same through judicial authority all across the world.

History Of Fundamental Rights

As we have discussed earlier, in 1215 English people were being assured with certain liberties
through Magna Carta by King John. It was being very first written document of then ancient liberties
which recognized the civil liberties of people. Then in 1689, Bill of Rights was written for
consolidating important rights and liberties for English people. After in 1789.

The Declaration of the French Revolution provided that:

"the aim of all political association is the conservation of the natural and inalienable rights of man."

The underlying idea in entrenching certain basic rights is to take them out of the reach of the
transient political majorities. It has, therefore, come to be regarded as essential that these rights be
entrenched in such a way that they may not be violated, tampered or interfered with by an
oppressive government.

With this end in view, some written Constitutions guarantee a few rights to the people and forbid
governmental organs from interfering with the same. In that case, a guaranteed right can be limited
or taken away only by the elaborate and formal process of the constitutional amendment rather
than by ordinary legislation. These rights are characterized as fundamental rights.[4]

For the origin of fundamental rights if we scientifically study this there is no history as such that how
it came into existence. These rights are so natural and basic in nature that they exist on their own.
It's just we; human being recognized its existence and gave it legal protection for its violation.

For e.g. unless and until there is right to life we wouldn't have existed or without freedom of speech
and expression I myself won't have been writing this research paper. All this is because the existence
of fundamental rights and legal protection given to it by Apex Court. The various courts of different
countries have worked on giving protection to these fundamental rights from time to time.

Various declarations, Constitutions of different countries have provided for Fundamental rights
through the time of its existence and have given legal protection to it.

English Bill of Rights

As discussed earlier, English people were assured with the ancient liberties by their King John. In
1215, Magna Carta, first written document which guaranteed these people liberties was written.

Magna Carta is a cornerstone of the individual liberties that we enjoy, and it presents an ongoing
challenge to arbitrary rule. But over time, while not envisaged at the time of its drafting, Magna Carta
has for many been seen not only as a foundation of liberty, but also one of democracy. And this
broader notion of the wider significance of Magna Carta makes it especially relevant today.

It is perhaps easiest to think of Magna Carta in two ways: first, as a document of historical and legal
significance; and secondly, as a principle underlying how we live, through equality under the rule of
law and through accountability. Magna Carta matters both for what it said in 1215 and, perhaps
more significantly now, for what it has come to symbolize.[5]

The Bill of Rights is later developed Act in 1689 which guarantees English citizens rights and liberties.
It is considered as most important document in guaranteeing civil liberties after the Magna Carta.

The Bill of Rights 1689 is an English Act of Parliament with the full title An Act Declaring the Rights
and Liberties of the Subject and Settling the Succession of the Crown and also known by its short
title, the Bill of Rights. It is one of the basic documents of English constitutional law, alongside Magna
Carta, the 1701 Act of Settlement and the Parliament Acts. It also forms part of the law of some other
Commonwealth nations, such as New Zealand. A separate but similar document applies in Scotland:
the Claim of Right.[6]

American Bill of Rights

After the Magna Carta in 1215, English Bill of Rights in 1689, France Declaration of Rights of Man and
the Citizen, the Americans incorporated Bill of rights in their Constitution.[7] After getting freedom
from the despotic English monarchy, the American people wanted strong guarantees that the new
government would not trample upon their newly won freedoms of speech, press and religion, nor
upon their right to be free from warrantless searches and seizures. So, the Constitution's framers
heeded Thomas Jefferson who argued:

"A bill of rights is what the people are entitled to against every government on earth, general or
particular, and what no just government should refuse, or rest on inference."[8]

The American Bill of Rights is inspired by Jefferson and drafted by James Madison. It was adopted in
1791. The Constitution's contained 10 amendments only. These first ten amendments became the
law of the land.

The rights that the Constitution's framers wanted to protect from government abuse were referred
to in the Declaration of Independence as "unalienable rights." They were also called "natural" rights,
and to James Madison, they were "the great rights of mankind."[9] Although it is commonly thought
that we are entitled to free speech because the First Amendment gives it to us, this country's original
citizens believed that as human beings, they were entitled to free speech, and they invented the First
Amendment in order to protect it. The entire Bill of Rights was created to protect rights the original
citizens believed were naturally theirs, including:

Freedom of Religion
Freedom of religion includes the right to exercise one's own religion, or no religion, free from any
government influence or compulsion.

Freedom of Speech, Press, Petition, and Assembly

Freedom of speech and freedom of press are given separately. Unlike the Indian Constitution
provision for freedom of press has been made individually. Even unpopular expression is protected
from government suppression or censorship.

Privacy
Right to privacy included in the American Bill of Rights includes, the right to be free of unwarranted
and unwanted Government interference into one's personal and private affairs, papers, and
possessions.
Due Process of Law
Due process of law is the right to be treated fairly by the Government whenever the loss of liberty or
property is at stake with the due process of law without arbitrariness.

Equality before the Law

Equality before the law includes the right to be treated equally before the law, regardless of social
status.

The extension of the Bill of Rights to protect individuals from abuse not only by the federal
government, but also from state and local governments remains an unsettled aspect of
Constitutional interpretation.

Originally, the protections were solely meant to limit the federal government, but with the
fourteenth amendment's guarantee in 1868 that no state could deprive its citizens of the protections
in the Bill of Rights this original view began to be expanded. To this day the Supreme Court has not
definitively decided if the entire Bill of Rights should always be applied to all levels of government.
[10]

Universal Declaration of Human Rights

Universal Declaration of Human Rights (UDHR), foundational document of international human
rights law. It has been referred to as humanity's Magna Carta by Eleanor Roosevelt, who chaired the
United Nations (UN) Commission on Human Rights that was responsible for the drafting of the
document.

As a result of the experience of the Second World War the Universal Declaration of Human Rights,
was adopted by the UN General Assembly on 10 December 1948. With the end of that war, and the
creation of the United Nations, the international community vowed to never again allow atrocities
like those of that conflict to happen again.

World leaders decided to complement the UN Charter with a road map to guarantee the rights of
every individual everywhere. The document they considered, and which would later become the
Universal Declaration of Human Rights, was taken up at the first session of the General Assembly in
1946.

The Assembly reviewed this draft Declaration on Fundamental Human Rights and Freedoms and
transmitted it to the Economic and Social Council "for reference to the Commission on Human Rights
for consideration . . . in its preparation of an international bill of rights."

The Commission, at its first session early in 1947, authorized its members to formulate what it
termed "a preliminary draft International Bill of Human Rights". Later the work was taken over by a
formal drafting committee, consisting of members of the Commission from eight States, selected
with due regard for geographical distribution.[11]

The UDHR comprises 30 articles that contain a comprehensive listing of key civil, political, economic,
social, and cultural rights. Articles 3, through 21 outline civil and political rights, which include the
right against torture, the right to an effective remedy for human rights violations, and the right to
take part in government. Articles 22 through 27 detail economic, social, and cultural rights, such as
the right to work, the right to form and to join trade unions, and the right to participate freely in the
cultural life of the community. Apparently, the UDHR's provisions highlight the interrelated and
interdependent nature of different categories of human rights as well as the need for global co-
operation and assistance to realize them.
One factor contributing to the UDHR's moral authority is precisely that it transcends positive
international law. Indeed, it enunciates general moral principles applicable to everyone, thus
universalizing the notion of a fundamental baseline of human well-being. Despite its shortcomings,
including a preoccupation with the state as the main perpetrator of human rights violations-which
has marginalized human rights problems stemming from socially and culturally sanctioned abusive
behavior and violence, whose perpetrators are often no state actors such as individuals, families,
communities, and other private institutions-the UDHR was and remains the key reference point for
international human rights discourse.[12] More than any other instrument, the UDHR is responsible
for making the notion of human rights nearly universally accepted.

International human rights law lays down obligations which States are bound to respect. By
becoming parties to international treaties, States assume obligations and duties under international
law to respect, to protect and to fulfill human rights.

The obligation to respect means that States must refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to protect requires States to protect individuals and
groups against human rights abuses. The obligation to fulfill means that States must take positive
action to facilitate the enjoyment of basic human rights.[13]

Through ratification of international human rights treaties, Governments undertake to put into place
domestic measures and legislation compatible with their treaty obligations and duties. The domestic
legal system, therefore, provides the principal legal protection of human rights guaranteed under
international law. Where domestic legal proceedings fail to address human rights abuses,
mechanisms and procedures for individual and group complaints are available at the regional and
international levels to help ensure that international human rights standards are indeed respected,
implemented, and enforced at the local level.[14]

Subsequent Developments as to Indian Constitution

Fundamental Rights are included in part III of the Constitution of India. The aim of having a
declaration of fundamental rights is that certain elementary rights, such as, right to life, liberty,
freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions
and that the shifting majority in Legislature of the country should not have a free hand interfering
with these fundamental rights.[15]

The inclusion of Chapter of Fundamental Rights in the Constitution of India is in accordance with the
trend of modern democratic thought the idea being to preserve that which is an indispensible
condition of a free society.

Seven fundamental rights were originally provided by the Constitution � the right to equality, right
to freedom, right against exploitation, right to freedom of religion, cultural and educational rights,
right to property and right to constitutional remedies. However, the right to property was removed
from Part III of the Constitution by the 44th Amendment in 1978.

The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles
based on equality of all members of society. Dr B. R. Ambedkar said that the responsibility of the
legislature is not just to provide fundamental rights but also and rather, more importantly, to
safeguard them.

The first demand for fundamental rights came in the form of the:
"Constitution of India Bill, in 1895. Also popularly known as the Swaraj Bill 1895, it was written during
the emergence of Indian nationalism and increasingly vocal demands by Indians for self-
government. It talked about freedom of speech, right to privacy, right to franchise, etc. he
development of such constitutionally guaranteed fundamental human rights in India was inspired by
historical examples such as England Bill of Rights (1689), the United States Bill of Rights and France's
Declaration of the Rights of Man.

In 1928, the Nehru Commission composing of representatives of Indian political parties proposed
constitutional reforms for India that apart from calling for dominion status for India and elections
under universal suffrage, would guarantee rights deemed fundamental, representation for religious
and ethnic minorities, and limit the powers of the government.

In 1931, the Indian National Congress (the largest Indian political party of the time) adopted
resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic
rights such as the minimum wage and the abolition of untouchability and serfdom. Committing
themselves to socialism in 1936, the Congress leaders took examples from the constitution of the
erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic
responsibility for national interests and challenges.[16]

When India obtained independence on 15 August 1947, the task of developing a constitution for the
nation was undertaken by the Constituent Assembly of India, composing of elected representatives
under the presidency of Rajendra Prasad. While members of Congress composed of a large majority,
Congress leaders appointed persons from diverse political backgrounds to responsibilities of
developing the constitution and national laws.

Notably, B. R. Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru
and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible
for different subjects. [17]

A major development during that period having significant effect on the Indian constitution took
place on 10 December 1948 when the United Nations General Assembly adopted the Universal
Declaration of Human Rights and called upon all member states to adopt these rights in their
respective constitutions.

The Fundamental Rights were included in the Ist Draft Constitution, the IInd Draft Constitution, and
the IIIrd and final Draft Constitution, being prepared by the Drafting Committee.[18]

Conclusion
Magna Carta is the first documentary assurance to these fundamental rights. These rights cannot be
created but they exist in nature which is natural. Various countries have included these rights in their
bill if rights in different forms of documents. These rights cannot be taken away from any of the
human being as they hamper living of human life.

End-Notes:
1. Supra 3
2. 319 US 624 : 87 Led 1928
3. Expansion And Protection Of Fundamental Rights By Judicial Interpretation And Intervention,
by J. Sorabjee available at http://docs.manupatra.in/newsline/articles/Upload/F2CAF29C-8860-
457A-8FDF-3E146E26F002.pdf last seen on 23/12/2021.
4. Rajib Hassan, The Origin And Concept Of Fundamental Rights In The Constitutions Of Us Uk
And India: A Comparative Analysis, available at https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2296804 last seen on 23/12/2021.
5. Justin Fisher, Why Magna Carta Still matters today, available at https://www.bl.uk/magna-
carta/articles/why-magna-carta-still-matters-today last seen on 24/12/2021.