FUNDAMENTAL RIGHTS- UK

The history of human rights in the United Kingdom is one of the oldest. An integral part of the UK
Constitution, human rights derive from common law, from statutes such as the Magna Carta, the
Bill of Rights of 1689 and the Human Rights Act 1998, from membership of the Council of
Europe, and from international law. Codification of human rights is recent, but the UK law had
one of the world’s longest human rights traditions. Today the main source of jurisprudence is the
Human Rights Act 1998, which incorporated the European Convention on Human Rights into
domestic litigation.

The Human Rights Act of 1998 sets out the human rights under different articles, some of the
more prominent rights set up in the Act are as follows:

 Right to life – Article 2

 Freedom from Slavery and Forced labour – Article 4
 Right to a Fair Trial – Article 6
 Freedom of Thought, Belief and Religion – Article 9
 Freedom of Expression – Article 10
 Right to Education – Protocol 1, Article 2
 Abolition of Death Penalty – Protocol 13, Article 1
The Act incorporates the rights provided in the European Convention of Human Rights which
essentially means that the citizens can agitate the violation of their rights in the British Courts
instead of going to the European Court of Human Rights. The Act requires all public bodies like
Courts, Police and Hospitals to respect and protect the human rights that are guaranteed to
individuals under this Act.

AM FUNDAMENTAL RIGHTS

INTRODUCTION

► All modern constitutions guarantee a set of fundamental rights to citizens - considered to

be inalienable rights without which one cannot conceive of human existence.

► The wording of Article 21 makes it all the more clear. It doesn't say that the Constitution
has given this right. Rather it says, "No person shall be deprived of his life or personal liberty
except according to procedure established by law".

► Fundamental rights operate as a limitation on the State which cannot take them away. In
case the State wants to take away or abridge fundamental rights of citizens, the constitution
clearly prescribes the procedure and the extent to which such an exercise can go.

▶ This is in tune with the concept of constitutionalism which is aimed at ensuring a greater
leeway to citizens against a possible despotic behaviour of the State and its
instrumentalities.
ORIGIN

►Social Contract Theory offers the best plausible explanation for this.

According to this theory, individuals - as members of society surrendered certain rights in

favour of the Sovereign in lieu of protection offered.

► This protection was protection of life, liberty and property from the brutality of "state of
nature" where might was right.

► The rights which individuals as members of the society never surrendered to the
Sovereign are their fundamental rights.

► Article 3 of the Universal Declaration provides that "everyone has the right to life, liberty
and security of person."

FUNDAMENTAL RIGHTS IN INDIA, US & UK

► INDIA: Part III of the Constitution deals with fundamental rights, some of which are
universal in nature.

▸ Some of the provisions (such as Article 21) are available to anyone irrespective of
nationality while the rest are available only to citizens.

▸ There is also a mechanism provided for protection of fundamental rights in case they
faced any threat.

► In the US, there was no fundamental right under the Constitution adopted by
Philadelphia Convention in 1787. It came into force in 1789 without having any fundamental
rights.

▸ After the French Revolution made "The Declaration of the Rights of Man and the Citizen"
in August 1789, the Americans realised that they need to have a set of fundamental rights
and accordingly on September 25, 1789, they passed the US Bill of Rights which came into
force in December 1791.

► In the UK, because of the concept of parliamentary supremacy, the concept of

fundamental rights is completely different from that in the US or India.

WHAT IS THE HUMAN RIGHTS ACT?

The Human Rights Act is a UK law passed in 1998.
It lets you defend your rights in UK courts and compels public organisations – including the
Government, police and local councils – to treat everyone equally, with fairness, dignity and
respect.
WHO CAN USE THE HUMAN RIGHTS ACT?
The Human Rights Act may be used by every person resident in the United
Kingdom regardless of whether or not they are a British citizen or a foreign national, a child
or an adult, a prisoner or a member of the public.
It can even be used by companies or organisations (like Liberty).
WHAT DOES THE HUMAN RIGHTS ACT ACTUALLY DO?
The human rights contained within this law are based on the articles of the European
Convention on Human Rights.
The Act ‘gives further effect’ to rights and freedoms guaranteed under the European
Convention. It means:
 Judges must read and give effect to other laws in a way which is compatible with
Convention rights
 It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
Read more about how the HRA works.
WHAT RIGHTS DOES THE HUMAN RIGHTS ACT PROTECT?
 The right to life: protects your life, by law. The State is required to investigate
suspicious deaths and deaths in custody.
 The prohibition of torture and inhuman treatment: you should never be tortured or
treated in an inhuman or degrading way, no matter what the situation.
 Protection against slavery and forced labour : you should not be treated like a slave
or subjected to forced labour.
 The right to liberty and freedom: you have the right to be free and the State can
only imprison you with very good reason – for example, if you are convicted of a
crime.
 The right to a fair trial and no punishment without law: you are innocent until
proven guilty. If accused of a crime, you have the right to hear the evidence against
you in a court of law.
 Respect for privacy and family life and the right to marry: protects against
unnecessary surveillance or intrusion into your life. You have the right to marry and
enjoy family relationships.
 Freedom of thought, religion and belief : you can believe what you like and practise
your religion or beliefs.
 Free speech and peaceful protest: you have a right to speak freely and join with
others peacefully, to express your views.
 No discrimination: everyone’s rights are equal. You should not be treated unfairly –
because, for example, of your gender, race, disability, sexuality, religion or age.
 Protection of property: protects against state interference with your possessions.
 The right to an education: means that no child can be denied an education.
 The right to free elections: elections must be free and fair.
WHAT DOES THAT MEAN FOR ME?
If you can show that a public authority has interfered with any of the rights recognised by
the Convention you can take action by:
  Writing to the public authority concerned to remind them of their legal obligations
under the Human Rights Act and ask them to rectify the situation.
 Going to court, which may find that a particular action (or inaction) of a public
authority is (or would be) unlawful. It can tell the public authority to stop interfering
with your right or to take action to protect your right.
 If the court is satisfied that a law is incompatible with a Convention right, it may
make a declaration of that incompatibility. This is a formal legal statement that the
particular law interferes with human rights. It does not have immediate effect but
strongly encourages Parliament to amend or repeal the law in question.

Fundamental Right- USA

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Overview
Fundamental rights are a group of rights that have been recognized by the Supreme
Court as requiring a high degree of protection from government encroachment.  These
rights are specifically identified in the Constitution (especially in the Bill of Rights), or have
been found under Due Process.  Laws encroaching on a fundamental right generally must
pass strict scrutiny to be upheld as constitutional. 
Non-Exhaustive List of Fundamental Rights 
Examples of fundamental rights not specifically listed in the Constitution include:
 marriage
 privacy
 contraception
 interstate travel.
 procreation
 custody of one’s child(ren) 
 voting
Repealing Fundamental Rights – The Fundamental Right to Contract
Even when the Supreme Court finds that something is a fundamental right, the Court
may later revoke its standing as a fundamental right. The Court did this with the right to
contract. In Lochner v New York (1905), the Supreme Court found that the right to make a
private contract is a fundamental right. The Court focused on the importance of economic
contracts in the context of individual liberty. In West Coast Hotel v. Parrish  (1937),
however, the Court found that there is not a fundamental right to contract: "There is no
absolute freedom to do as one wills or to contract as one chooses.”
There is much scholarship written about why the Court would take such drastically
different approaches to a “fundamental right” in such a relatively short period of time. For
further reading, this Minnesota Law Review article takes a thorough view of the shift. The
article rejects the notion that “Lochner era was dominated by laissez-faire, social Darwinist
Justices.” Rather, the article argues that "the shift in constitutional values from Lochner to
West Coast Hotel was the result of developments in legal, economic, and political theory, as
well as the harsh realities of economic life during the Great Depression. Taken together,
these factors were a powerful reason for the constitutional development embodied in West
Coast Hotel."
 Fundamental Rights- USA
To prevent abuses that threaten the entire civilization, to create happiness for all
people, and to prevent great unjustified suffering, all fundamental rights are granted to all
people in every civilized society. The italicized statement is also the meaning of the Ninth
Amendment to the United States Constitution: The amendment grants all fundamental
rights not already granted in other parts of the Constitution. Moreover, each right is a
liberty since it prevents certain restrictions on one's state of body or environment; liberty
cannot be denied without "due process of law" (Fifth and Fourteenth Amendments); and
there is no due (proper) process of law to deny fundamental rights since denying such rights
is inherently improper since fundamental rights are those rights whose protection is
essential for the society. Liberty is the ability to do whatever one wants; thus, all restrictions
are deprivations of liberty; however, some restrictions are proper and thus with due process
of law. Freedom to control other people is a liberty since the right to achieve what one
wants (or even merely freedom from bodily restraint) is meaningless without some control
over other people. This document describes, explains, and justifies human rights and their
protection by the United States Constitution.
Equality Under Law
The Fourteenth Amendment (for the states) and the Fifth Amendment (for the
federal government) forbid unreasonable discrimination by the laws, that is discrimination
by criteria irrelevant to the law's application. To discriminate, that is to punish, against
people based on irrelevant criteria would deprive them of liberty without "due process of
law" since a proper process of law can be based only on relevant criteria. Such
discrimination occurred and still occurs because of the prejudice of the lawmakers, greatly
damaging the society. Generally, laws cannot discriminate based on race, sex, age and other
irrelevant criteria such as sexual orientation, ethnic culture, and religion.
Voting Rights: A vital "protection under the laws" is the right to vote. Each person
must have a right to vote. This fundamental right must be given equally to all people and
the government must be controlled (indirectly) through voting. Otherwise, the power would
belong to an elite (those who can vote) who can choose to use it for their benefit at others
expense. It is essential for the government to improve the country and to serve the people,
and thus it is essential not to give the government the power to ignore the people by
denying some people the right to vote.

Freedom of Communication
Why Freedom of Communication is Fundamental: Free exchange of ideas is
essential for full development and change of the society. Moreover, while information can
profoundly help, it cannot hurt: actions, not information, cause damage; the government
should regulate actions, not speech. Depriving a person of information distorts decision
making and may prevent essential improvements. With freedom of information, people
decide how to use the information for their best interests.
Finally, free exchange of ideas is essential for informed voting and thus essential for
a democratic society. It is meaningless to poll people on ideas if they cannot communicate
the ideas; the society cannot be democratic if the government can prevent certain ideas and
thus preventing democracy on some (important) issues. Therefore, free exchange of ideas
and information, called freedom of communication, is a fundamental right and is granted to
all people. Freedom of communication must be granted to all people since preventing a
person (any person) from communicating an idea (any idea) would block that idea, and
preventing a person from obtaining an idea prevents the person from communicating ideas
based on that idea and thus blocks the ideas. To allow censorship in any case would give the
government the power to censor and thus endanger the society.