Fundamental rights

List of important rights

Some universally recognized rights that are seen as fundamental, i.e., contained in the United Nations Universal Declaration of Human Rights, the U.N. International Covenant on Civil and Political Rights, or the U.N. International Covenant on Economic, Social and Cultural Rights, include the following:

Legal meaning in the United States

Though many fundamental rights are also widely considered human rights, the classification of a right as "fundamental" invokes specific legal tests courts use to determine the constrained conditions under which the United States government and various state governments may limit these rights. In such legal contexts, courts determine whether rights are fundamental by examining the historical foundations of those rights and by determining whether their protection is part of a longstanding tradition. Individual states may guarantee other rights as fundamental. That is, States may add to fundamental rights but can never diminish or infringe upon fundamental rights by legislative processes. Any such attempt, if challenged, may involve a "strict scrutiny" review in court.

Specific jurisdictions

Canada

In Canada, the Charter of Rights and Freedoms outlines four Fundamental Freedoms.[8] These are freedom of:

European Union

Europe has no identical doctrine (It would be incompatible with the more restrained role of judicial review in European law.) However, EU law recognizes many of the same human rights and protects them through other means.

See also: Copenhagen criteria, and European Convention on Human Rights, which every member state of the EU has to comply with and for which the European Court of Human Rights has final appellate jurisdiction.

India

The Indian fundamental rights, contrasted with such rights contained in the US bill of rights, present several peculiarities.The fundamental rights in India are far more elaborate than in the United States. Thus, for example, the US bill of rights (first ten amendments) only names some rights. The Supreme Court, through the process of judicial review, decides the limitations on these rights.

There are seven main fundamental rights of India:

  • right to equality
  • right to freedom, which includes freedom of speech and expression, right to assemble peacefully, freedom to form associations or unions, right to move freely throughout the territory of India, right to reside or settle in any part of the territory of India, right to practice any profession or to carry on any occupation.
  • right to freedom of religion
  • right against exploitation
  • cultural and educational rights
  • right to constitutional remedies
  • right to vote(but above 18 years)

Newly implemented 7th Fundamental right in India is

  • right to education

It was added in the constitution after the 86th amendment in the year 2002 under article 21A. It is the most recently implemented fundamental right. The RTE Act enabled this right in the year 2010.

A recent addition was made to the list of fundamental rights in India in 2017.

  • right to privacy.

United States

In American Constitutional Law, fundamental rights have special significance under the U.S. Constitution. Those rights enumerated in the U.S. Constitution are recognized as "fundamental" by the U.S. Supreme Court. According to the Supreme Court, enumerated rights that are incorporated are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.

The original interpretation of the United States Bill of Rights was that only the Federal Government was bound by it. In 1835, the U.S. Supreme Court in Barron v Baltimore unanimously ruled that the Bill of Rights did not apply to the states. During post-Civil War Reconstruction, the 14th Amendment was adopted in 1868 to rectify this condition, and to specifically apply the whole of the Constitution to all U.S. states. In 1873, the Supreme Court essentially nullified the key language of the 14th Amendment that guaranteed all "privileges and immunities" to all U.S. persons, in a series of cases called the Slaughterhouse cases. This decision and others allowed post-emancipation racial discrimination to continue largely unabated.

Later Supreme Court justices found a way around these limitations without overturning the Slaughterhouse precedent: they created a concept called Selective Incorporation. Under this legal theory, the court used the remaining 14th Amendment protections for equal protection and due process to "incorporate" individual elements of the Bill of Rights against the states. "The test usually articulated for determining fundamentality under the Due Process Clause is that the putative right must be 'implicit in the concept of ordered liberty', or 'deeply rooted in this Nation's history and tradition.'" Compare page 267 Lutz v. City of York, Pa., 899 F. 2d 255 - United States Court of Appeals, 3rd Circuit, 1990.

This set in motion a continuous process under which each individual right under the Bill of Rights was incorporated, one by one. That process has extended more than half a century, with the free speech clause of the First Amendment first incorporated in 1925 in Gitlow v New York. The most recent amendment completely incorporated as fundamental was the Second Amendment right to possess and bear arms for personal self-defense, in McDonald v Chicago, handed down in 2010.

Not all clauses of all amendments have been incorporated. For example, states are not required to obey the Fifth Amendment's requirement of indictment by grand jury. Many states choose to use preliminary hearings instead of grand juries. It is possible that future cases may incorporate additional clauses of the Bill of Rights against the states.

The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution, including but not limited to:

  • The right to interstate travel
  • The right to parent one's children[9]
  • The right to privacy[10]
  • The right to marriage[11]
  • The right of self-defense

Any restrictions a government statute or policy places on these rights are evaluated with strict scrutiny. If a right is denied to everyone, it is an issue of substantive due process. If a right is denied to some individuals but not others, it is also an issue of equal protection. However, any action that abridges a right deemed fundamental, when also violating equal protection, is still held to the more exacting standard of strict scrutiny, instead of the less demanding rational basis test.

During the Lochner era, the right to freedom of contract was considered fundamental, and thus restrictions on that right were subject to strict scrutiny. Following the 1937 Supreme Court decision in West Coast Hotel Co. v. Parrish, though, the right to contract became considerably less important in the context of substantive due process and restrictions on it were evaluated under the rational basis standard.

See also

Footnotes

  1. ^ "International Covenant on Civil and Political Rights Article 1".
  2. ^ a b "International Covenant on Civil and Political Rights Article 9".
  3. ^ "International Covenant on Civil and Political Rights Article 12".
  4. ^ a b "International Covenant on Civil and Political Rights Article 18".
  5. ^ "International Covenant on Civil and Political Rights Article 19".
  6. ^ "International Covenant on Civil and Political Rights Article 21".
  7. ^ "International Covenant on Civil and Political Rights Article 22".
  8. ^ "Canadian Charter Of Rights And Freedoms". Efc.ca. Retrieved 2012-11-05.
  9. ^ Troxel v. Granville
  10. ^ see Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891)
  11. ^ Loving v. Virginia & Obergefell v. Hodges
1969 Zambian constitutional referendum

A constitutional referendum was held in Zambia on 17 June 1969. The referendum proposed amending the constitution to remove the requirement for future amendments of clauses protecting fundamental rights to go to a public referendum, and instead require only a two-thirds majority in the National Assembly. The referendum was passed with 85% voting in favour of the change. Voter turnout was 69.5%.

Basic structure doctrine

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these "basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a power of the Supreme Court to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution.The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. Thus it gives extra power to court to review and strike down any constitutinal amendmentts and act enacted by the Parliament.

The Supreme Court's initial position on constitutional amendments was that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote, It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".

Capital punishment in Bhutan

Capital punishment in Bhutan was abolished on March 20, 2004 and is prohibited by the 2008 Constitution. The prohibition appears among a number of fundamental rights guaranteed by the Constitution; while some fundamental rights—such as voting, land ownership, and equal pay—extend only to Bhutanese citizens, the prohibition on capital punishment applies to all people within the kingdom.

Charter of Fundamental Rights and Freedoms

The Charter of Fundamental Rights and Basic Freedoms (Czech: Listina základních práv a svobod, Slovak: Listina základných práv a slobôd) is a document enacted in 1991 by the Czechoslovak Federative Republic, and continued as part of the constitutional systems of both the Czech Republic and Slovak Republic. In the Czech Republic, the document was kept in its entirety in its 1991 form as a separate document from the constitution, but imbued with the same legal standing as the constitution. By contrast, the basic provisions of the Charter were integrated directly into the Slovak constitution. Though these legal provisions articles are substantively the same, there are some differences, such as the Slovak contention that "the privacy of correspondence and secrecy of mailed messages and other

written documents and the protection of personal data are guaranteed."The inclusion of the goals of the Charter directly into the Slovak constitution means that only the Czech Republic currently has a "Charter of Fundamental Rights and Basic Freedoms". This article is therefore principally about that document, and its predecessor in the Czechoslovak Federative Republic.

Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. However, its then legal status was uncertain and it did not have full legal effect until the entry into force of the Treaty of Lisbon on 1 December 2009.

Under the Charter, the European Union must act and legislate consistently with the Charter and the EU's courts will strike down legislation adopted by the EU's institutions that contravenes it. The Charter applies to the Institutions of the European Union and its member states when implementing European Union law.

Civil liberties

Civil liberties or personal freedoms are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.

Constitution of Ghana

The Constitution of Ghana is the supreme law of the Republic of Ghana. It was approved on 28 April 1992 through a national referendum after 92% support. It defines the fundamental political principles, establishing the structure, procedures, powers and duties of the government, structure of the judiciary and legislature, and spells out the fundamental rights and duties of citizen.

Constitution of India

The Constitution of India (IAST: Bhāratīya Saṃvidhāna) is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth. B. R. Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a constituent assembly rather than Parliament) and was adopted by its people with a declaration in its preamble. Parliament cannot override the constitution.

It was adopted by the Constituent Assembly of India on 26 November 1949 and became effective on 26 January 1950. The constitution replaced the Government of India Act, 1935 as the country's fundamental governing document, and the Dominion of India became the Republic of India. To ensure constitutional autochthony, its framers repealed prior acts of the British parliament in Article 395. India celebrates its constitution on 26 January as Republic Day.The constitution declares India a sovereign, socialist, secular, democratic republic, assuring its citizens justice, equality and liberty, and endeavours to promote fraternity.

Constitution of Nepal

Constitution of Nepal 2015 (Nepali Name:नेपालको संविधान २०७२) is the present governing Constitution of Nepal.

Nepal is governed according to the Constitution which came into effect on Sept 20, 2015, replacing the Interim Constitution of 2007.

The constitution of Nepal is divided into 35 parts, 308 Articles and 9 Schedules.

The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period after the devastating earthquake in April 2015. The constitution was parties which refrained from the voting process.

Its institutions were put in place in 2010 and 2018 through a series of direct an indirect elections in all governing levels.

Constitution of Pakistan

The Constitution of the Islamic Republic of Pakistan (Urdu: آئین پاکستان‬), also known as the 1973 Constitution is the supreme law of Pakistan. Drafted by the government of Zulfiqar Ali Bhutto, with additional assistance from the country's opposition parties, it was approved by the Parliament on 10 April and ratified on 14 August 1973.The Constitution is intended to guide Pakistan's law and its political culture, and system. It identifies the state (its physical existence and its borders), people and their fundamental rights, state's constitutional law and orders, and also the constitutional structure and establishment of the institutions and the country's armed forces. The first three chapters establish the rules, mandate, and separate powers of the three branches of the government: a bicameral legislature; an executive branch governed by the Prime Minister as chief executive; and an apex federal judiciary headed by Supreme Court. The Constitution designates the President of Pakistan as a ceremonial Head of State who is to represent the unity of the state. The first six articles of the constitution outline the political system as federal parliamentary republic system; as well as Islam as its state religion. The Constitution also encapsulates provisions stipulating the legal system's compliance with Islamic injunctions contained in the Quran and Sunnah.The Parliament cannot make any laws which may be repugnant or contrary to the Constitution, however the Constitution itself may be amended by a two-thirds majority in both the houses of the bicameral Parliament, unlike the previous legal documents of 1956 and 1962. It has been amended over time, and most recent impulses for political upgrades and reforms has been amended. Although enforced in 1973, Pakistan, however, celebrates the adoption of the constitution on 23 March—when the first set was promulgated in 1956—each and every year as Republic Day.

European Commissioner for Justice and Consumers

The Commissioner for Justice, Consumers and Gender Equality is a post in the European Commission. The current commissioner is Věra Jourová.

Frans Timmermans

Franciscus Cornelis Gerardus Maria Timmermans (Dutch pronunciation: [frɑnˈsɪskʏs kɔrˈneːlɪs xeːˈrɑrdʏs frɑns ˈtɪmərˌmɑns]; born 6 May 1961) is a Dutch politician and diplomat serving as First Vice-President of the European Commission and European Commissioner for Better Regulation, Interinstitutional Relations, the Rule of Law and the Charter of Fundamental Rights since 2014. He is the lead candidate (also known by the German term Spitzenkandidat) of the Party of European Socialists (PES) for President of the European Commission in the 2019 European elections.

Timmermans previously served as Minister of Foreign Affairs from 2012 to 2014 in the Second Rutte cabinet and State Secretary for Foreign Affairs from 2007 to 2010 in the Fourth Balkenende cabinet, in charge of European Affairs. He was a member of the House of Representatives for the Labour Party from 1998 to 2007 and again 2010 to 2012. He was a civil servant in the Government of the Netherlands from 1987 to 1998, until he became active in politics.

Fundamental Rights, Directive Principles and Fundamental Duties of India

The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. These sections comprise a constitutional bill of rights for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India.

The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, applied irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing policies and passing laws.

The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not enforceable by courts unless otherwise made enforceable by parliamentary law.

Fundamental Rights Agency

The European Union Agency for Fundamental Rights (usually known in English as the Fundamental Rights Agency; FRA) is a Vienna-based agency of the European Union inaugurated on 1 March 2007. It was established by Council Regulation (EC) No 168/2007 of 15 February 2007.

Fundamental Rights and Duties in Nepal

Part III of Constitution of Nepal describes about Fundamental rights and Duties of Nepalese citizens.

Article 16 to Article 47 of the Nepalese constitution guarantees 31 fundamental rights to Nepalese people. These include freedom to live with dignity, freedom of speech and expression, religious and cultural freedom, right against untouchability and discrimination etc. Article 48 describes duties of every Nepalese. It says safeguard the nationality, sovereignty and

integrity of Nepal.

Fundamental rights in India

Fundamental rights, the basic and civil liberties of the people, are protected under the charter of rights contained in Part III (Article 12 to 35) of the Constitution of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, religious and cultural freedom and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

Fundamental rights apply universally to all citizens, irrespective of race, place of birth, religion, caste or gender. The Indian Penal Code and other laws prescribe punishments for the violation of these rights, subject to discretion of the judiciary. Though the rights conferred by the constitution other than fundamental rights are also valid rights protected by the judiciary, in case of fundamental rights violations, the Supreme Court of India can be approached directly for ultimate justice per Article 32. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.

The six fundamental rights recognised by the Indian constitution are the:

Right to equality

Cultural and Educational Right

Right to freedom

Right against exploitation

Right to freedom of religion, and

Right to constitutional remedies

1. The right to equality includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.

2. Cultural and Educational Rights are given to the Citizens of India to conserve their cultural practices and that they must have access to education.

3. The right to freedom includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation.

4. The right against exploitation prohibits all forms of forced labour, child labour and trafficking of human beings.

5. The right to freedom of religion includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from

religious instructions in certain educational institutes. Cultural and educational rights preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

6. The right to constitutional remedies is present for enforcement of Fundamental Rights. The right to privacy is an intrinsic part of Article 21 (the Right to Freedom) that protects life and liberty of the citizens.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour (a crime). They also protect cultural and educational rights of religious and linguistic minorities by allowing them to preserve their languages and also establish and administer their own education institutions. They are covered in Part III (Articles 12 to 35) of Indian constitution.

Some features of Indian Constitution :

1. It provides safeguard if any political leader misuses his power.

2. It also provides safeguard against discrimination.

3. It says "all persons are equal before law."

4. It provides fundamental rights.

Laws in Bangladesh

Bangladesh is part of the common law jurisdiction. It is a member of the Commonwealth of Nations. The legal system of Bangladesh has its roots in the laws of British India. Since independence in 1971, statutory law enacted by the Parliament of Bangladesh has been the primary form of legislation. Judge made law continues to be significant in areas such as constitutional law. Unlike in other common law countries, the Supreme Court of Bangladesh has the power to not only interpret laws made by the parliament, but to also declare them null and void and to enforce fundamental rights of the citizens. The Bangladesh Code includes a compilation of all laws since 1836. The vast majority of Bangladeshi laws are in English. But most laws adopted after 1987 are in Bengali. Family law is intertwined with religious law. Bangladesh has significant international law obligations.

During periods of martial law in the 1970s and 1980s, proclamations and ordinances were issued as laws. In 2010, the Supreme Court declared that martial law was illegal, which led to a re-enactment of some laws by parliament. A Right to Information Act has been enacted. Several of Bangladesh's laws are controversial, archaic or in violation of the country's own constitution. They include the country's special powers act, blasphemy law, sedition law, internet regulation law, NGO law, media regulation law, military justice and aspects of its property law. Many colonial laws require modernization.

According to the World Justice Project, Bangladesh ranked 103rd out of 113 countries in an index of the rule of law in 2016.

National Commission for Minorities

Constitution of India doesn't define the word 'Minority' but has used the word minorities considering two attributes religion or language of a person. For minorities Constitution of India has envisaged a number of rights and safeguards. To provide enough equality and to dwindle the discrimination, makers have spelt out various things in Fundamental Rights (PartIII); Directive Principles of State policy (Part IV) and also the Fundamental Duties (Part IV-A). However, with rising right and rising wedge between right and left and also the ephemeral political aspirations of various political parties have diluted the discrimination safeguards.

The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992. Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in Gazette of India as minority communities by the Union Government all over India . Original notification of 1993 was for Five religious communities Sikhs, Buddhists,Parsis,Christians and Muslims.

Solidarity

Solidarity is unity (as of a group or class) that produces or is based on unities of interests, objectives, standards, and sympathies. It refers to the ties in a society that bind people together as one. The term is generally employed in sociology and the other social sciences as well as in philosophy or in Catholic social teaching. In addition, solidarity is a core concept in Christian democratic political ideology.What forms the basis of solidarity varies between societies. In simple societies it may be mainly based on kinship and shared values. In more complex societies there are various theories as to what contributes to a sense of social solidarity.Solidarity is also one of six principles of the Charter of Fundamental Rights of the European Union and December 20 of each year is International Human Solidarity Day recognized as an international observance.

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