This article was written by Shobhna Aggarwal and further updated by Monesh Mehndiratta. The present article elaborates on the meaning of rights and explains the concept related to human rights and fundamental rights. It explains their origin, recognition, and characteristics and further highlights the difference between human rights and fundamental rights.
Table of Contents
Introduction
‘Rights’. What comes to mind when you read this word?
Have you ever wondered why you have been given certain rights in a country? Is it just the humans who have been given the rights, or do the animals also have some rights?
Well, only humans are entitled to rights. This is because they have been gifted with the power and skills of intellect and talent, which makes them unique and different from animals. These rights also contribute to individual and societal growth and development. Initially, humans were free, and no one could control their actions. However, as the society expanded, they entrusted some of their freedoms to kings and monarchs who ruled them and controlled society in return for some rights and freedoms. Monarchs and kings were later replaced by the government, which was formed by representatives elected by the people. This is how the concept of rights came into the picture.
The concept has been broadened by the introduction of different kinds of rights. This further leads to confusion between them, which makes it necessary for us to understand the difference between different kinds of rights, mainly human rights and fundamental rights. Both these rights have been the talk of the decade. However, people might get confused between the two, which brings us to this article. The present article will help us differentiate easily between the two kinds of rights. The article explains the meaning, origin, evolution, and means of protecting human rights in India and at the international level. It goes on to explain the meaning, evolution, and characteristics of fundamental rights in the Indian Constitution. It finally concludes by elaborating on the difference between the two kinds of rights.
Meaning of rights
The development of society and the evolution of law are closely linked with each other. It is pertinent to note that in a society or a group of people, every person has certain rights and duties towards the other. In order to understand human rights and fundamental rights, it is important to understand the jurisprudence of rights.
John Austin defined ‘right’ as “something because of which others are bound or obliged by law to do or forbear towards or in regard to him”. However, John Stuart Mill stated that the Act referred to by Austin must be in the interest of the person who has the right. Rudolf Von Jhering, on the other hand, defined rights as “legally protected interests”.
Salmond defined rights as an ‘interest which is recognised and protected by a rule or justice’. This means that for a right to be termed as a legal right, it must obtain both legal protection and recognition. Holland defined it as the capacity of a man to control the actions of others with the assent and assistance of the state. The Supreme Court of India, in the case of State of Rajasthan v. Union of India (1977), defined rights as interests that are protected by law by imposing corresponding duties on others.
There are two theories of legal rights. The “Will theory” considers right as an inherent attribute of human will. According to this theory, the aim of law is to allow free expression of human will. It is supported by scholars like Hegel, Kant, Hume, etc. The “Interest theory”, on the other hand, considers rights as legally protected interests and that the aim of the law is to protect the interests of humans and to avert conflict between different interests.
Thus, from above, it can be understood that rights have the following features:
- They exist in a society and are the products of social living.
- They are claims of individuals and significant for development in society.
- These are recognised as common claims of all people.
- These are rational and moral claims.
- These cannot be exercised against society.
- They are equally available to people.
- Rights are not absolute and have restrictions and limitations in the name of public health, national security, integrity and morality.
- These are closely related to duties. Where there are rights, there are duties.
- These must be enforced by law in order to be exercised and enjoyed by people.
Types of rights
For all human beings living in existence, rights are necessary for their economic development, prosperity, and harmonious living with other neighbourhoods in the world. The three main rights available to the citizens of a country are – human rights, fundamental rights, and legal rights.
Human rights pertain to the rights through which an individual can enjoy a just, fair, and free life, whereas fundamental rights are unique to any country which supports the democracy of a country. All the human rights that are available are of an indivisible nature, whether they are civil rights or political rights. Human rights entail both rights and obligations. States assume the obligation and duties under international law to respect, protect, and fulfil human rights.
Legal rights, on the other hand, are those bestowed onto a person by acts and are statutory in nature. They can be repealed by another act subject to approval by parliament.
Fundamental rights are other kinds of rights which are guaranteed by the Constitution of a country to its citizens. Under these kinds of rights, citizens are given certain freedoms and rights. For example, the right to equality, the right to religion, freedom of speech and expression, etc.
The other different kinds of rights:
- Natural rights
- Moral rights
- Legal rights
- Primary and secondary rights
- Public and private rights
- Positive and negative right
- Vested and contingent rights
- Perfect and imperfect rights
- Principal and accessory rights
- Legal and equitable rights.
- Proprietary and personal rights.
- Rights in remand and rights in personam
- Rights in re propria and rights in re aliena.
- Human rights
- Fundamental rights
Concept of human rights
There are some particular rights that are inherent to every human regardless of his or her age, caste, creed, race, sex, colour, nationality, ethnicity, and any other status. This means that every person in the world is entitled to these rights without any form of discrimination. This concept is quite similar to that of natural rights, which were available to a person from the moment he has taken a birth. Andrew Heywood remarked that human rights are the modern evolution of natural rights.
The significance of human rights lies in the fact that these are universal in nature and available to every person across borders despite his or her nationality. Another significant feature of human rights is that they are fundamental and have prime importance as they create a base for all other rights that a person is entitled to in his or her country. These are indivisible in nature. Let us try to understand the evolution of human rights.
Evolution of human rights at the international level
The concept of human rights developed with the emergence of natural rights in the world, particularly in Europe. The idea and notion of natural rights were further elaborated by philosophers like John Locke, Thomas Hobbes, Hugo Grotius, etc. These rights, like the right to life, the right to liberty and pursuit of happiness, and the right to property, were mentioned in documents like the Magna Carta in 1215, the Bill of Rights of 1688, the US Declaration of Independence (1776), and so on. During these years, the focus was on the humanitarian growth of society and providing certain basic rights to people across the globe. For example, the Congress of Vienna in 1815 aimed at abolishing the slave trade, which was achieved in 1890.
It is pertinent to note that the development of human rights and the humanitarian movement gained momentum after the two brutal world wars. Countries felt a need to form an organisation to look into the matter of human rights and regulate the same at the international level. This is because the League of Nations formed in this regard failed in its task to do the same, and the situation resulted in world wars. The idea to protect human rights was also conceived in the Atlantic Charter in 1941 and the declaration of the United Nations in 1942. It was after the UN charter came into force that the countries realised the importance of implementing its principles. Thus, in 1946, the Economic and Social Council proposed to form an international bill of rights.
A committee was appointed to draft a declaration of general principles on Human Rights in 1947. This draft was adopted on 10th December 1948 as the Universal Declaration of Human Rights, famously known as UDHR. The document serves as a milestone in the history of human rights and was signed by the General Assembly in Paris. This is how the UDHR and the UN came into existence and resulted in the evolution of human rights at the international level. The UDHR consists of 30 articles and provides basic principles of human rights. Out of these 30, 20 articles relate to civil and political rights, while six articles provide economic, social, and cultural rights. Some of the rights as given in the declaration are:
- Right to life, liberty, and security (Article 3).
- Freedom from slavery (Article 4).
- Prohibition of torture and inhumane treatment (Article 5).
- Equality (Article 7).
- Presumption of innocence (Article 11).
- Right to privacy, home, family, etc (Article 12).
- Right to nationality (Article 15).
- Right to property (Article 17).
- Right to participate in government (Article 21).
- Social security (Article 22).
- Right to work and choice of employment (Article 23).
- Rest and leisure (Article 24) etc.
The UN provides a wide range of globally accepted rights, such as civil rights, political rights, economic rights, etc. It also provides mechanisms and procedures to implement the same in the member countries and their responsibilities. The development of human rights has not ended here but gained momentum through a series of conventions. The rights have evolved over the years with the help of different treatises and conventions like the Convention on Prevention and Punishment of Crime of Genocide in 1948, the International Convention on the Elimination of all Forms of Racial Discrimination in 1965, etc., and continue to evolve so with the development and changes in the society and needs of people.
International covenants on human rights
Apart from the declaration, the committee constituted in 1947 was also assigned the task of drafting two covenants providing a wide range of rights for the people. The two covenants, named the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, were adopted in 1966.
International Covenant on Civil and Political Rights
The covenant consists of civil and political rights. It is divided into VI parts with 53 Articles as:
- Preamble
- General provisions (Articles 1-3 & 5).
- Rights in emergency (Article 4).
- Substantive Rights (Article 6-27).
- Enforcement machinery (Article 28-45).
- Interpretation (Article 46-47).
- Concluding provisions.
Some of the rights mentioned in the covenant are the right to life, freedom from slavery, liberty and security, freedom of movement, right to a fair trial, freedom of association, etc. However, it must be noted that these rights are not absolute in nature. There are certain restrictions like public order, morality, public health, or national security.
International Covenant on Economic, Social, and Cultural Rights
The covenant consists of 31 articles divided into 5 parts as:
- Preamble
- General provisions (Article 1-5).
- Substantive Rights (Articles 6-15).
- Implementation provisions (Articles 16-25).
- Concluding provisions (Articles 26-31).
Some of the rights mentioned in the covenant are the right to work, the right to form and join trade unions, social security, the right to motherhood, childhood, marriage and family, the right to physical and mental health, etc. The importance of the covenant lies in the fact that it recognises the inherent dignity and inalienable rights of human beings.
Human rights in India
The concept of human rights is not new to India. The country is culturally diverse, with multiple religions and languages. Each religion embodies certain values and principles that indicate the existence of human rights. The Buddhist doctrine of non-violence is a humanitarian doctrine; the Bhagavad Gita represents the values of humanity, truth, freedom from anger, non-violence, compassion, etc. Kautilya’s Arthashastra provided that the happiness of a king is in the happiness of his subjects. Manu emphasised that the king must provide economic rights and help the orphaned, aged, and infirm people. Emperor Ashoka protected human rights like equality, fraternity, liberty, and happiness.
The history of the modern version of human rights in India can be traced back to the times when the nation was ruled by the British Government. During this time, Indians were tortured, humiliated, and discriminated against. The sacred human rights were denied and ignored. Lokmanya Tilak advocated that freedom is the birthright of any person. In 1885, Congress was established and demanded rights and freedoms for people. In 1925, after long years of struggle, a bill regarding the Declaration of Rights was finalised but rejected by the British government in 1927. The Sapru Committee in 1945 stressed the need for a written code of rights in the country, and so these were included in the Constitution by the Constituent Assembly.
Human rights under the Indian Constitution
The importance of human rights lies in the fact that every person has the right to enjoy his own mental and physical aspects. The concept of human rights is based on the principle of human solidarity, non-violence, and the mental respect of all the rights given under the Constitution of India. The universal rights that any human being should possess are human rights. The Universal Declaration of Human Rights, the United Nations describes human rights as the “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.”
Some universal human rights include:
- The right to education and to reap the rewards of freedom of culture and of scientific advancement.
- The freedom to operate in equal and favourable terms.
- The right to social security, to an acceptable standard of living, and to the best attainable physical and mental well-being levels, etc.
Human rights, thus, are those which, considering their nationality, faith, age, and race, are intrinsic to all human beings.
The Human rights which are classified under the Indian constitution are as follows:
- The right to equality and freedom from discrimination.
- The right to life, liberty, and personal security.
- Freedom from torture and degrading treatment.
- The right to equality before the law.
- The right to a fair trial.
- The right to privacy.
- Freedom of belief and religion.
- Freedom of opinion.
- Right of peaceful assembly and association.
- The right to participate in government.
- The right to social security.
- The right to work.
- The right to an adequate standard of living.
- The right to education.
- The right to health.
- The right to food and housing.
Protection of Human Rights Act, 1993
After seeking guidance from the UN and upon its recommendations, India established the National Human Rights Commission in the country through an ordinance. The ordinance was later replaced by legislation enacted to redress violations of human rights and protect them. The aim of the Protection of Human Rights Act, 1993 is to provide for the Constitution of the National Human Rights Commission and State Human Rights Commission in different states for better protection of human rights. The Act is divided into 8 Chapters with 43 Sections.
According to Section 3, the commission consists of the following members:
- Chairperson who has been the chief justice of India or judge of the Supreme Court.
- One member among the judges of the Supreme Court.
- A person who has been or is chief justice of a High Court.
- 3 members, out of which one shall be a woman having knowledge related to matters concerning human rights.
Apart from these members, the following are deemed to be its members and are required to discharge some functions specified in Section 12 of the Act:
- Chairperson of National Commission for Backward Classes.
- Chairperson of National Commission for Minorities.
- Chairperson of the National Commission for the Protection of Child Rights.
- Chairperson of National Commission for the Protection of Scheduled Castes and Scheduled Tribes.
Functions of the National Human Rights Commission in India
According to Section 12 of the Act, the commission is required to perform the following functions:
- Inquire about the complaints of violations of human rights either suo moto or on an application made in this regard.
- Intervention in the proceedings of allegations of violations of human rights in the country.
- Visit jail or other institutions under the control of the state government where people have been detained for the purpose of treatment, reformation or protection.
- Review guidelines and safeguards for the implementation of human rights in the country.
- Promote research and study treaties and international instruments in this regard.
- Spread literacy and awareness in society to promote human rights
- Encourage the efforts of NGOs and other institutions working in the field of human rights, etc.
Constitution and functions of State Human Rights Commission
According to Section 21 of the Act, State Human Rights Commission (SHRC) consists of:
- One Chairperson who has been a judge of the Chief Justice of the High Court.
- One member who has been a judge of the High Court or District Judge of the State with seven years of experience.
- One member to be appointed having knowledge in the matters related to human rights.
- One secretary who will be the chief executive officer of the commission and will exercise administrative and financial powers.
The State Commissions are required to inquire into the matters of violation of human rights in the state, and the central government can confer upon them the functions to be discharged, subject to Section 12 of the Act.
Difference between human rights and legal rights
Human rights are universally accepted rights that are available to every person regardless of his or her gender, age, sex, caste, race, religion, nationality, and other status. For example, equality, freedom from discrimination, right to work, etc. These differ from legal rights which are formulated by the government of a state and are mentioned in the statutes and laws therein. Legal rights are certain specific privileges and freedoms given to the people by their respective governments by virtue of any particular law or statute. For example, the Right to information in India is separately mentioned in the Right to Information Act, 2005.
Legal rights apply to a collection of rights formulated within a government’s legal structure. They are granted to the people of that specific state as privileges. Therefore, there are certain rights and privileges provided to citizens which are provided by the rules. According to the rules of the particular country, these rights are granted to the citizens of that country. In short, the freedoms granted to people by their governments through the formulation of legislation are legal rights. These freedoms/rights are thus established and upheld by the government’s legal framework. Similarly, these rights are not universal, differing from state to state, country to country, individual to individual, and even from time to time.
Concept of Fundamental Rights
Another set of rights is fundamental rights guaranteed to citizens of a particular country. These are enshrined in the respective Constitutions of the states. These included liberties and rights that are available to only the citizens of a country and are essential for their development and protection in society. Any violation of fundamental rights in a country can be addressed in the courts, usually a higher court or the Supreme Court.
Evolution of Fundamental Rights
India was a colony of Britain and ruled by the British government. During this period, the rights of people were denied, and they were tortured and humiliated. Many leaders protested against the discrimination and torture and formed the India National Congress. Indians demanded rights and freedoms during the years 1917-19. However, in 1919, the British government enacted the Rowlatt Act to curb the protests. This Act empowered the government to make indefinite arrests, detain individuals, warrantless searches and seizures, and impose restrictions on public gatherings, among others. However, the masses opposed the Act through campaigns and violent movements.
In 1928, the Nehru Commission demanded the right to vote and elections along with representation in the government in order to limit the powers of the British government. It was after the independence and formation of the Constituent Assembly that the fundamental rights were discussed and incorporated into the Constitution of India.
Characteristics of Fundamental Rights
The fundamental rights are characterised by the following features:
- These rights are protected and guaranteed by the Constitution, unlike other rights. No state government or public authority is allowed to violate these rights.
- These rights are not absolutely available to people, which means they are not absolute in nature and have reasonable restrictions like public health, morality, national security, integrity, sovereignty, etc.
- These rights are justiciable, which means that a person can seek remedy from the courts in case of any violation of his or her fundamental rights. In India, a person can directly move to the Supreme Court in case of violation of fundamental rights by virtue of Article 32 of the Constitution.
- These are equally available to all citizens. Some of the rights are available only to the citizens, while rights like equality, non-discrimination, etc, are available to every person.
- In India, these rights can be suspended only in situations of emergency. However, rights mentioned in Articles 20 & 21 can never be suspended, even in emergencies.
Fundamental rights under the Indian Constitution
For a fundamental right to exist, there must be human rights. Fundamental rights are those rights that are provided by some countries for their citizens to enjoy. These rights are backed by legal sanction. These rights can also be challenged in a court of law. Fundamental rights are equal to human rights, but there is a small line of difference between fundamental rights and human rights. The basic difference is that fundamental rights have legal sanctity, and they can be challenged in a court of law in case of violation, but human rights are not recognised by the law, so they can’t be challenged in a court of law. The basic human rights enshrined in the Constitution of India, which are granted to all people, are fundamental rights. They are enforced on the grounds of ethnicity, faith, gender, etc., without prejudice. Significantly, fundamental rights are enforceable by the courts, subject to certain conditions.
These rights are called fundamental rights because of two reasons:
- They are enshrined in the Constitution.
- They are justifiable. They are enforceable by courts. An individual may approach a court of law in the event of a breach.
Following are the six fundamental rights of the Indian Constitution:
- Right to Equality (Article 14, Article 15, Article 16, Article 17 and Article 18)
- Right to Freedom (Article 19, Article 20, Article 21, Article 21A and Article 22)
- Right against Exploitation (Article 23 and Article 24)
- Right to Freedom of Religion (Article 25, Article 26, Article 27 and Article 28)
- Cultural and Educational Rights (Article 29 and Article 30)
- Right to Constitutional Remedies (Article 32)
Difference between fundamental rights and legal rights
Fundamental rights are those rights that are inherent in nature and are available to the citizens of a particular country by virtue of its Constitution. These are constitutionally protected, and any grievance related to them can be addressed in the courts, especially higher courts and the Supreme Court. These are sacrosanct in nature, as in countries like India, where various fundamental rights are a part of the basic structure of the Constitution.
Legal rights, on the other hand, are available by virtue of any legal statute or enactment in a country. Any violation of a legal right will be addressed by the authorities by following the procedure mentioned in the statute or enactment. It is pertinent to note that all the other rights provided under the Constitution, except the fundamental rights and Directive Principles of State Policy provided under Part III and Part IV, respectively, fall under the category of legal rights. For example, the right to property under Article 300A is a legal right and not a fundamental right.
Comparison between human rights, legal rights, and fundamental rights
Fundamental rights are the rights of a country’s citizens that are stated in the Constitution and enforced by the law. Human rights, on the other hand, are the safeguards that a human being seeks in order to live with dignity and equality. Legal rights, on the other hand, are provided in the statutes and legislations by the government of a country. Fundamental rights only include certain rights that are fundamental to the existence of a person. Human rights, on the contrary, include certain rights that can not be excluded. Legal rights, on the other hand, are rights other than the fundamental rights, that are provided under the specific statute by the legislature.
While fundamental rights are nation-specific, i.e. these rights may differ from country to country. There is a worldwide recognition of human rights, which ensures that these rights are enjoyed by all individuals. The legal rights are available to citizens only, and these rights can be amended by the government of that country. Basic rights depend on the fundamental concept of the right to freedom. In comparison, human rights are founded upon the right to a dignified life.
Within the country’s Constitution, constitutional rights are guaranteed, while human rights are recognised internationally. Legal rights are distinctly specified by various governments and are not present in the Constitution. In nature, all Constitutional and Human rights are enforceable, although the former is enforced by the court of justice, and while the latter is enforced by the United Nations Organisation. On the other hand, in the case of enforceability, legal rights are enforceable by the government, but they can be taken away or modified at any time.
Fundamental rights are extracted from the opinion of a free society. Human rights, on the other hand, derive from the ideas of civilised countries. It is necessary to adjudicate the human rights of counterparts as the rights resulting from the social growth and obligation of a certain area.
| Basis of comparison | Human rights | Legal rights | Fundamental rights |
| Meaning | Human rights are universally accepted rights that are available to every person regardless of his or her gender, age, sex, caste, race, religion, nationality and other status. | Legal rights are certain specific privileges and freedoms given to the people by their respective governments by virtue of any particular law or statute. | Fundamental rights are those rights that are inherent in nature and are available to the citizens of a particular country by virtue of its Constitution. |
| Protection and recognition | These rights are recognised internationally and protected by the UDHR and various international treaties and conventions. | These are legally protected and recognised in a particular statute or enactment made in this regard. | These are protected and recognised in the Constitution of every country and, hence, fundamental in nature. |
| Amendment | Human rights which have been made a part of the Constitution of a country or any statute can be changed by making an amendment to the statutes and the Constitution. | Amendments can be made by making changes in the statute. | The Constitution can be amended, and hence, so can fundamental rights. |
| Basic structure | Human rights that are further recognised as fundamental rights in the constitution of a country form its basic structure. | Legal rights do not fall within the basic structure of the Constitution. | The essence of Fundamental rights in the Constitution of India forms a part of its basic structure. |
| Waiver | These rights cannot be waived off by a person. | It can be waived off by a person. | Fundamental rights cannot be waived off by a person. |
| Enforceability | These rights are enforced by the United Nations and various other international treaties and conventions. | Enforced by the statute in which they are mentioned. | These rights are enforceable against both states and individuals. |
| Remedies for violations | Violations of human rights in a country can be addressed in the Supreme Court or Apex Court of the country. | Remedy can be sought from the authority mentioned in the Statute. | Writ jurisdiction and application to the High Court or Supreme Court are some remedies to deal with violations of fundamental rights in India. |
Conclusion
Rights are most important in a society. When people give up their freedoms to the government by forming a government to make laws on their behalf, they expect certain rights in return. These rights and their co-related duties further ensure the smooth functioning and development of society. Human rights, legal rights, and fundamental rights are different kinds of rights that may sound similar but are significantly different from each other. In an emergency situation, these privileges are suspended by the president of India, and these rights are given without implication or expense of privilege to all persons who come under the authority of the Constitution. Basically, these are the rights that are granted without restrictions to all people according to the country’s legal structure. In the certain determination of borders, the resident of the country possesses these protections and liberties.
Human rights are the rights that are available to all men and women globally. Fundamental rights are rights that are guaranteed by the Indian Constitution. These are the most fundamental rights that shield an individual from other people’s inhuman actions. There are many rights that are generally recognised as basic and necessary for the fulfilment of physical, mental, and emotional security needs. Thus for the life of a human being on this planet, these protections are more beneficial.
There have been many instances of violations of fundamental rights and human rights across the globe, especially in situations of wars and armed conflicts. It is high time that these issues must be highlighted and addressed at the right forum. The countries must again sit together to find the right solution for the issue at hand, or else living in the world would become a battle to fight every day with gross violations of human rights.
Frequently Asked Questions (FAQs)
What is the significance of the Universal Declaration of Human Rights?
The UDHR is considered the Magna Carta of modern human rights. It provides guidelines, basic principles and rights for all the member countries to follow and adhere to in their laws and regulations.
What are the drawbacks or limitations of the Universal Declaration of Human Rights?
The following are the drawbacks of UDHR:
- It is not binding on member countries as a law but is a mere recommendation.
- Most of its provisions and clauses are general in nature.
- There is no means of implementing the declaration on the states other than their goodwill.
Is India a signatory to UDHR?
Yes, India is a signatory to UDHR. It has adhered to almost all of its rights and also enacted a separate legislation, named the Protection of Human Rights Act, 1993, in the country to protect and promote human rights.
References
- M.P. Jain- Indian Constitutional Law, Wadhwa Publication Nagpur, 5th Edn. 2003, Rep 2004.
- HO Aggarwal, Human Rights, Central Law Publications.
- https://articles.manupatra.com/article-details/UNVELING-THE-PROMINENCE-OF-PRIMORDIAL-CONCEPT-OF-HUMAN-RIGHTS-IN-THE-LIGHT-OF-HUMAN-RIGHTS-IN-INDIA
- https://docs.manupatra.in/newsline/articles/Upload/82F6F397-6AE0-4253-940E-58C9B0BDEC32.%20Amartish%20Kaur__Human%20Rights.pdf
- https://www.ihra.co.in/uploads/pdf/Human_rights_law_in_India.pdf
- https://www.un.org/en/global-issues/human-rights
- https://www.cambridge.org/core/books/abs/cambridge-companion-to-the-philosophy-of-law/rights-and-human-rights/428B00DB1B699D050C65F0F927E152B6
- https://legisnations.com/human-right-v-legal-right-v-fundamental-right/
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