Short essay on our Fundamental Rights (India)

Discussing the implications of democracy in his, Liberty in the Modern State, Harold Laski says, that first, it involves a frame of government in which men are given the chance of making the government under which they live, at stated intervals. We have seen above how this principle is safeguarded under the Constitution.

Secondly, he says, it involves the securing to the citizens certain fundamental human rights and the maintenance of those rights by the separation of the judicial from the executive powers.

Thirdly, it involves the bringing into existence of a Bill of Rights for safeguarding the fundamental human rights, such as freedom of speech, protection from arbitrary arrest and the like. According to Laski, the supremacy of the “rule of law” is essential for the working of a democracy.

Only where the rule of law prevails, true democracy can function and the success or failure of a democracy depends largely on the extent to which civil liberties are enjoyed by the citizens in general.

Liberty, however, is not an easy word to define. “The world has never had a good definition of the word liberty”, said Abraham Lincoln on 18th April 1864, soon after the American civil war on the question of slavery, “and the American people, just now, are much in want of one.

We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labour; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labour.

Here are two not only different, but incompatible things, called by the same name, liberty. And it follows that each of the things is, by the respective parties called by two different and incompatible names – liberty and tyranny”.

Genuine democracy must for ever guard against the temptation to transform itself into a system under which the ruling majority claims infallibility for itself. While democracy required that the will of the people limit the freedom of the government, it also requires that the freedom of the popular will be limited.

A popular will not so limited becomes the tyranny of the majority which destroys the freedom of political competition and thus uses the powers of the government to entrench itself permanently in the seat of power and to prevent a new majority from forming.

Further, it will tend to think and act as if it will provide the ultimate standard of thought and action and there is no higher law to limit its freedom. As Laski has put it: “If in any State there is a body of men who possess unlimited political power, those over whom they rule can never be free”.

The emergence of such a state of affairs will result in the disappearance of certain vital characteristics of democracy, the spirit of questioning and individual initiative.

Their place will be taken up by unquestioned submissiveness and conformity, the most distinguishing characteristics of a totalitarian system. This is perhaps the most serious danger inherent in the dynamics of modern democracy which is to be strongly guarded against.

There are two possible alternative safeguard which a constitution can provide to remedy the situation. First, it can guarantee certain basic rights to the individual citizen against all encroachment by the State.

Secondly, it may so divide the powers of the State and entrust them to separate agencies that nobody of men possesses unlimited power. The Constitution of India has chosen the first alternative and tries to achieve the objective by embodying in it a set of fundamental rights and guaranteeing them through an independent judiciary.

These rights impose limitations both on legislative and executive powers. On the one hand, the legislature is prohibited from passing certain laws which would curtail the individual’s freedom. On the other, the executive is compelled to adhere to certain formalities and procedures when it deals with the citizens.

Thus, in an attempt to secure fundamental freedoms, the Constitution delimits the respective spheres of activity of the State and the individual and erects a wall, as it were, between the government and the people.

The Constitutions affirms 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. They establish the framework of “democratic legitimacy” for the rule of the majority.

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.