The way rights of individuals and groups should be secured and guaranteed has been attempted differently. In some countries, rights are in the nature of Residual Rights as in England; in another, they are protected as Bill of Rights as in USA and yet another, as Fundamental Rights as in India. There have been different conventions of securing rights by either limiting state interference or invoking positive obligations. We may discuss three significant systems or frameworks of providing legal rights in the UK, USA and India.
In England, the Constitution does not provide any charter or bill of rights or fundamental rights. Rights are in the nature of residual rights and are within the framework of Common law. This means, the individual has rights so long as public authorities do not interfere; do everything that is not forbidden. Rights are remains of what legal restraints take away. This mostly protects the individual from the executive. Parliament, however, is sovereign and as such can literally legislate to take away rights of the individual. Thus, rights are subject to infringement under Parliamentary supremacy. Even the British Court cannot override the same. Rights of the individual, in fact, are grounded only on ordinary law of England and are not provided through Bill of Rights or as fundamental rights.
William Blackstone in his Commentaries on the Law of England identified three rights in English law, namely the right to personal security, the right to personal liberty, and the right to private property. A. V. Dicey also demonstrated that rights were to be derived from the rule of law, as right to personal freedom, freedom of discussion and the right to assembly. Which rights should become part of common law has been a matter of debate in England.
It has been suggested that the UK should also enact a statutory ‘Bill of Rights’. It has been argued that incorporating European Convention on Human Rights (1950) into domestic law could serve this purpose. With enactment of Human Rights Act, 1998 in the UK, rights have been given the status of statutory rights. However, unlike the Bill of Rights of USA, the British Parliament is allowed to infringe the Act.11
The American Constitution guarantees rights through the Bill of Rights. The Bill of Rights is a corpus of rights that defines the scope of civil liberties and limits the legislature and the executive from interfering in the rights of the individuals and groups. In England, Parliament is sovereign in interfering in the rights of the individuals. In America, both executive and legislature are limited from interfering. The American Judiciary with its supremacy keeps a check on both the executive and the legislature from violating the rights provided in the Bill of Rights. The American Congress and Senate cannot infringe the Bill of Rights by invoking the ‘emergency or danger to the state’ clause. The ‘declarations in the American Bill of Rights are absolute and the power of the state to impose restrictions upon the fundamental rights of the individual in collective interests had to be evolved by the judiciary.’12 Thus, Bill of Rights provides a check on the executive and the legislative from interfering with the given rights of the individual. Judicial supremacy is a check on both the organs.
It may be mentioned that most of the states in America had the Bill of Rights on the time of their joining the American federation. They insisted that the Constitution of the United States of America should also have a list of rights. It was as consequence that the first 10 amendments that were carried out in the American Constitution included these requirements.13
The Indian Constitution provides for a charter of ‘Fundamental Rights’ that defines the rights provided to the individuals/citizens and various religious, cultural, linguistic and ethnic groups. Fundamental rights have been made enforceable and justiciable by provision of writs under the fundamental rights section in the Constitution. They are protected from both executive intervention and also unnecessary interference from the legislature. However, though judiciary has right of judicial review, legislature is supreme in the matters of legislation on fundamental rights. Further, in times of national emergency or on the basis of reasonable restrictions, the state can impose limits on the fundamental rights.
The Indian Constitution also provides for ‘constitutional rights’; right to property is a constitutional right. These are not enforceable under the fundamental rights category. Restriction imposed by the state on such rights cannot be challenged on the basis of unreasonableness. However, persons cannot be deprived of constitutional rights ‘save by authority of law’.
Rights contained in the Human Rights Act (UK), Bill of Rights (USA) and Fundamental Rights (India) are enacted, legal and positive rights, which are enforceable in courts.
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