Difference between Constitutional rights and Fundamental rights
Author:- Ruksana Khatun, a Student of JRSET law college of Kalyani University
Introduction :-
Constitutional Right : All rights that have been conferred to the citizens and enshrined in the constitution of India but are not under the domain of part ||| of the constitution are said to be Constitutional Rights.
Constitutional law deals with the fundamental principles by which the government exercises its authority .For example, the process for enacting new laws or amending existing laws, the method of amending the constitution and the number of terms or years a member of the legislative body may serve.
Fundamental Rights : The fundamental rights are the basic and inalienable rights granted to each citizens of India , and in some cases to non citizens too. These rights are enshrined in part ||| of the constitution of India and are 6 in number .
Right to equality – Article 14,15,16 &18
Right to freedom – Article 19,20,21A & 22
Right against exploitation – Article 23 &24
Right to freedom of religion – Article 25,26,27&28
Cultural & education rights – Article 32,33,34 & 35
The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by Article 19(1)(f) & Article 31 of the constitution and hence Article 19(1)(f) & Article 31 has been omitted .
What is actual difference between these two right?
Meaning : constitutional rights are the rights granted to the people of India in the Indian Constitution. It also includes fundamental rights.
Fundamental rights are a set of rights which are innate necessities to live a dignified human life .
Protection : Constitutional rights protected and guaranteed by the Indian Constitution.
Fundamental rights protected and guaranteed by the Indian Constitution & they are country specific.
Origin : Fundamental rights are usually derived from the natural law, which holds that certain rights are inherent to all Human beings.
Constitutional rights on the other hand, are a product of the political process and reflect the values and beliefs of the society that enshrines them in the Constitution.
Amendment : constitutional rights changes can be done only by amending the constitution.
Fundamental rights changes can be done only by amending the Constitution. Fundamental rights can be said to be a subset of general human rights.
Basic Structure : constitutional rights part of the basic structure of the Constitution .
Fundamental rights part of the basic structure of the Constitution .
Wavier of rights: one cannot waive any Constitutional right. [ Gate vs. Ins,121 F.3d1285,1293( 9th cir.1997)]
Individuals cannot waive an FR . [ Behram khurshed pesikaka v. The state of Bombay.(1954)]
Scope: Constitutional rights, on the other hand far reaching and cover a wide range of rights and freedoms including those that are not explicitly mentioned in the constitution.
Fundamental rights are narrow in scope and apply only to a specific set of rights such as equality, freedom of speech etc.
Courts : Constitutional rights in case of violation, an individual can move directly to Supreme Court.
Fundamental rights in case of violation, an individual can move to Supreme Court or High Court. In fact , the remedy to move to SC in such a cash is in itself a fundamental right.(Article 32)
Enforceability: Constitutional rights are enforced by the court of justice .
Fundamental rights are mainly against the state, but a few are also enforceable against both individuals and state like untouchability or prohibition of beggar.
Example:
Constitutional rights – 1. Right to property.
2.Legislative privileges.
3.Reservation of seats for certain classes in the House of people.
Fundamental rights –
1. Right to privacy.
2.Right to basic education.
3.Right to seek constitutional remedies.
Conclusion :-
it is very pertinent to know that fundamental rights cannot be completely differentiated from constitutional rights because fundamental rights are an integral part of the Indian constitution and are incorporated in part ||| of this supreme document. Thus it can be said that all fundamental rights constitutional rights , but all constitutional rights are not fundamental rights . However, for the proper functioning of India as a welfare state all the rights mentioned in the constitution other than fundamental rights and constitutional rights are also equally important.
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