Absolute Rights v/s Qualified Rights

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Absolute Rights v/s Qualified Rights
29 Jul 2020

Introduction

A civilized society lies upon the foundation of law and order. If we remove rules and regulations from an area, that area will become the home of disasters. Now, in order to make people follow those regulations certain other things are needed such as- there must be some rights given to the people and these rights must come with some or other kind of duties. There must also be a framework to punish those who misuse their rights or do any offence or deny someone his rights.

This entire framework is backed by Rights and Duties. They both are two irreplaceable wheels of the administration of a state.

From time to time, rights have been divided into many categories, they have been given many names and they have been categorized differently, but in the end, they all are rights.

Absolute Rights Meaning

As the name itself suggests, Absolute Rights are those which cannot be taken away. In other words, every right which has no exceptions or limitations is known as absolute right. However, most of the rights are kept out of this category, because when a right is made absolute, it sometimes endangers the very spirit of the constitutionality.

The rights which fall under the category of Absolute Rights are those, which are in their very spirit essential for humanity. These are the rights, which cannot be limited or constrained in any condition.

For example- Every person has the right that no one shall practice Untouchability against him; this right cannot have any exceptions. You cannot practice Untouchability in any form and in any circumstances.

The government cannot say that this right will only be available in specific circumstances, because if it says so it will destroy the very form of this right. Therefore this right is an absolute right and it cannot be denied in any form, no matter what happens.

Absolute Rights in the Constitution

Part III of the Indian Constitution contains the fundamental rights that have been granted to citizens and non citizens by the Constitution. However, not all of them are not absolute rights. Most of these rights have some exceptions, limitations or conditions.

It is necessary too as these rights cannot enjoy the status of absoluteness, otherwise they will overpower the public order or security of the country.

The few absolute rights in Indian Constitution are as follows:

  1. Article 15 (2) - This article says that ‘on the basis of Religion, Race, caste, Sex, Place of Birth or any of them, no citizen shall be restricted from accessing shops, public restaurants, hotels, place of public entertainment and no one shall be prohibited from using wells, tanks, bathing ghats, roads and public places which are maintained by the government or are dedicated to general use. Some people do not consider this right as absolute because this article has some provisions which enable the state to make any special provision for women/children/backward classes. However, you must understand that the clause (2) of Article 15 grants absolute right; there are no limitations or exceptions for this provision. And Clauses (3), (4) and (5) are not exceptions, they are just enabling provisions. The state cannot take away the rights listed in 15 (2) in any condition. Even in the situation of emergency, the state can put restrictions on the movement of people, but it can not discriminate among anyone.
    • For example- “If the government imposes emergency, all persons shall be prohibited from going to shops, restaurants etc. but state can never say that only the people from a particular religion, race, caste or sex are not allowed to go out. The restriction will be same for all and no discrimination shall take place. And article 15 does not give you the right to enjoy unrestricted access of a place, it gives you the right to not to be discriminated in that access.”
  2. Article 17- This article says that the practice of Untouchability is not allowed in the country in any form. And doing such act shall be punishable by the law. This clearly establishes that no one can practice untouchability in any condition and even the state cannot make any law to nullify this provision. This is an absolute right.
  3. Article 24- This article says that employment of children below the age of 14 in any mine or any hazardous place is prohibited. This article contains no exceptions or limitations upon this right. No one shall employ any children in the contravention of this article in any situation.

Relative Rights

These are the rights which are not available against the government or the administration or the public at large. These rights are only present at places where the human being shares a personal relation with someone. These rights are available in respect of that relation only.

This right might be between a husband and a wife, a guardian and a ward or a servant with his master.

For example- every guardian has a duty towards his ward to provide basic elementary education and safety to him. This duty generates right for the ward in respect of his guardian only. His right of asking for these things exists only against his guardian and no one else.

Absolute Rights v/s Qualified Rights

We have learnt about absolute rights which cannot be infringed or abrogated by the government; however qualified rights are just opposite of absolute rights. Qualified Rights are the rights which are not absolute in their nature and can be limited/abrogated/infringed by the government in specific conditions.

For example- Article 19 (1) (d) provides that every citizen shall have the freedom to move freely throughout the complete territory of India, however in the interest of general public or in the interest of Scheduled Tribes, the government can restrict or limit this right. It means this right is a qualified right.

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Article 21 guarantees that no one shall be deprived of his life and personal liberty but it has an exception. A person can be deprived of his life and personal liberty if it is done by a procedure which is established by the law. It proves that this right is not absolute but qualified.

Conclusion

No matter in how much category do we divide rights, the basic purpose of them is to protect the general interest of the public against the unlawful and wrongful actions or omissions committed by the state or private individuals. However not all rights can be granted the status of absolute rights, because reasonable restrictions are necessary for those rights.


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