The tendency in a modem democratic State is to incorporate such basic rights in its Constitution so as to ensure their full enjoyment by all citizens without discrimination of any kind.
A democratic government is representative, but the representative government is a government by the majority party, and it is possible that either as a result of political rivalry or by yielding to passion, it may curtail the cherished rights of the minority party or parties.
In order to withdraw fundamental rights from the pitch of political controversy and to place them beyond the reach of majorities and officials they are embodied in the Constitution and given special sanctity.
Their inclusion in the Constitution is a declaration of the fact that certain elementary rights of the individual are inviolable under all conditions and the shifting majorities in the legislature of the country should not be able to tamper with them. If they do, redress can be sought in courts of law. Courts become the custodian of fundamental rights.
A Bill of Rights, therefore, is a declaration of fundamental rights. It is a mechanism for the safeguarding of basic freedoms and may be defined as a series of rules generally embodied in a written Constitution setting forth the fundamental civil and political rights of the citizens and imposing certain limitations on the powers of the ordinary government, as a means of securing the enjoyment of those rights.
They are enshrined in the Constitution to give them sanctity and special force. They cannot be invaded arbitrarily either by the legislature or the executive or any other authority. If it happens it is the duty of the courts to intervene and ensure the due observance of fundamental rights.
In Hurtado v. People of California, Justice Mathews, of the United States Supreme Court, declared: “The limitations imposed by constitutional law upon the actions of Government, both state and national, are essential to the preservation of public and private rights notwithstanding the representative character of our political institutions.
The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities as well against the power of numbers, as against the violence of public agents transcending the limits of public authority, even when acting in the name and wielding the force of government.”
Constitution is, thus, a check upon encroachment by any authority, especially the majority party in office, and the individuals. Judiciary is the unfailing guardian of the sanctity of the Constitution and it is its duty to uphold it.
President Taft, of the United States of America, observed that constitutional safeguards “are the self-imposed restraints of a whole people upon a majority of them to secure sober action and a respect of the rights of the minority….In order to maintain the rights of the minority, and the individual and to preserve our constitutional balance, we have judges with courage to decide against the majority when justice and law require.”
But in actual practice, the safeguards offered by a written Constitution for securing fundamental rights are not as straightforward as they might appear. Many of the rights accepted as fundamental at one time may become obsolete after some time.
The obsolete rights continue to exist, because they are enshrined in the Constitution and constitutional changes are not easy to make, however great the need for such changes may be. Then, the Constitution requires interpretation.
The American and Indian systems of judicial review disclose that it is a frail safeguard. The judges, while giving decisions, and in whatever legal dress such decisions are clothed, render political decisions and that, too, with a five to four majority in the United States and six to five in India as in the famous Golak Nath case.
All the same, no one can discount the political utility of the declaration of fundamental rights. It is true that fundamental safeguards alone do not ensure to a people the enjoyment of their basic liberties. But the guarantees for the fundamental rights, as embodied in the Constitution, are a visible expression of the nation’s faith in the worth and value of man.
They create a free atmosphere for the individual to rise to the full height of his stature. It is also an attempt to circumscribe the powers so that human freedom may not b subordinated to governmental functions. The powers and functions of government are s reconciled with the freedom of man that each may have the large freedom consistent with the demand of the social order.
The Bill of Rights withdraws certain subjects from the vicissitudes of political controversy and defends minority rights. Laski says, “Bills o rights are quite undoubtedly a check upon a possible excess of the government of the day.
They warn us that certain popular powers have had to be fought for, or may have to’ fought for again. It (Bill of Rights) acts as a rallying point in the State for all who ca deeply for the ideal of freedom.” The Constitution of India contains a carefully chose code of fundamental rights.
There are, in this country, a score of minorities, and minority of different kinds, both horizontally and vertically divided. The Chapter on Fundamental Rights is intended to forge unity out of the diversity by constitutionally securing rights of the minorities rather than leave them to the whims of the shifting political majorities.
Free societies must defend minority rights. Finally, a declaration of rights serves as an instrument of education. It provides a constant background for the political life of the people.