1.
Introduction
British
Constitution is not the creator but product of fundamental rights, which have
been recognized from time to time, by the courts. However, some rights have recognized
by parliament through enactments.
2.
Meanings of Right
That
which is proper under law, morality r ethics.
3.
Recognition of Fundamental Rights
During
the later part of the 19th and the beginning of the 20th
century, different states in the world, recognized in their constitution the
fundamental rights of men. All these countries were conscious that if
fundamental rights are not guaranteed, the citizens have no chance of
ascertaining their rights which would develop their personalities.
Since
World War I fundamental rights and duties have been accepted an indispensable
condition of the peaceful progress of the world & during the second world
war and after, this faith has become stronger because we are now concerned in
the establishment of a stable international society and from citizens we have
not gone to the state. In order to achieve this it, is essential that rights
must be embodied in the positive laws of the country as superior laws to the
powers of any government, so that they only can become effective guarantees
against the action of the state.
In
the Universal declaration of Human Rights, adopted in December 1948, these
rights were also recognized.
4. Importance of Fundamental Rights
According
to Laski: “Every state is known by the rights that it maintains. Our
method of judging its character lies above all, in the contribution that it
makes to the substance of man’s happiness.”
In
his view, the state is simply a sovereign organization with the power to get
its will obeyed but the citizen has every right to get the motive and character
of Governmental acts duly scrutinized. The state does not create rights but
recognizes them.
5.
The theory of Rights
In a
modern state where people are conscious of their rights it is always necessary
to know the exact nature of rights and to see what meaning they embody. A legal
theory of rights may tell us what the character of a state is, but it will not
tell us whether the rights are properly recognized or not.
6. Fundamental Rights in England
The
English constitution is unwritten and hence there is no fundamental right in
the sense that we have in some of the written constitutions.
In
England rights are essentially founded upon traditions. The foundations of
individual rights in England are almost negative in the sense that an
individual has the right and freedom to take whatever action he likes, so long
as the does not violate any rule of the ordinary law of the land. The for great
charters which have guaranteed the rights of Englishmen since ages now are
i.
the Magna Charta
ii.
Petition of Rights
iii.
Bill of Rights
iv.
The Act of Settlement
8.
General Principle
The general
principle is that a person may do what he likes so long as he does not infringe
the civil or the criminal law of the land. If a person has a right, the law
provides a remedy to enforce it.
It
is a well settled rule of law that if the person has a right he must, of
necessity, have a means to vindicate and maintain, and a remedy if he is
injured in the exercise or enjoyment of it. Since want of right and want of
remedy are reciprocal so it is a vain thing to imagine a right without a
remedy.
9.
Enforcement of Rights/However, the rights of Englishmen if enforced?
The
problem of enforcement of fundamental rights always presents great difficulties
to every state; for every effective machinery is required for determining
whether a fundamental right is being infringed or not e.g in the U.S.A. This
function was assumed by the Supreme Court. In different countries different
methods are adopted so as to ensure the maximum enjoyment of fundamental rights.
The constitution
of England in unwritten and in the absence of any written document it is the
duty of the law courts to protect individual liberty by judicial decisions. It has
been maintained that.
“The
law of England is the Law of liberty.”
Since
British Parliament is sovereign, the subjects in England, cannot possess
guaranteed rights such as are proclaimed and protected in many of the written constitutions
of the world. Therefore, in England the absence of constitution guarantees
renders it absolutely necessary that there should be strong public opinion in
the matter of these basic freedoms. Apart from this the subjects in England own
their main protection to the following
i.
The high development of the action of trespass in its various formats.
ii.
The prerogative writs and orders and particularly to writs of Habeas Corpus.
iii.
all statutes and legislative acts are to the interpreted within the framework
of the fundamental rights granted to the citizens.
iv.
The rights for insisting upon having common law actions affecting the subject
have most cherished rights.
v.
All subjects are subject to the jurisdictions of the Law Courts with the
exception of the Sovereign and the members of the judiciary who can seek
exemption from this rule.
Conclusion
In
the U.K the rights of individuals are not guaranteed by the constitution but by
the courts.
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