“Exercise of Fundamental Rights cannot be invoked in exceptional circumstances.’ Discuss


Fundamental rights are usually defined as absolute rights a citizen of a country possesses that cannot under the majority of circumstances be taken from the citizen. From a legal standpoint fundamental rights are mainly those stated in legal rulings or region laws[1], though sometimes certain rights are thought so basic they’re inferred. Sometimes the term is used more loosely with a suggestion that all people have basic or human rights to which they should be entitled.

These basic rights include freedom of speech and press, right to expedient trials, freedom of religion, right to assemble, and right to bear arms. Freedom against discrimination and right to vote are other provisions. Many countries state rights of their citizens. The US is an example of this and the Bill of Rights and Amendments[2] to the Constitution, like the 14th Amendment, make very clear some fundamental rights of citizens.

The right to refuse medical treatment to a child if it goes against a person’s religion, such as Jehovah’s Witness parents refusing blood transfusions for their children is a challenging subject but will usually be thought a fundamental right of the parent. While these rights are explicitly written, there are some that may be considered even more fundamental from a legal prospective, though open to interpretation by judicial ruling. Another potential fundamental right is to raise children in an unconventional manner, provided there is no abuse.

There are arguments that courts should view other rights as fundamental, such as the right to marriage among same-sex partners. The right to marriage appears to be a fundamental right, and yet does not in most US states apply to people of the same gender. An argument is often made that rights are fundamental, even if not stated, if most people have them.

Interesting precedent exists in federal and state courts when a right appears fundamental but cannot be won by vote. Desegregation[3] of schools in some parts of the South had to be achieved through court order instead of by voting. A similar decision was made with Roe v. Wade, which legalized abortion[4]. Many states and voters would have and would continue to fight this procedure as not a fundamental right of women. The courts can become strongly involved in granted these additional rights thought fundamental because they can deem that part of society will continue to refuse to grant them.

Courts, on case-by-case rulings, often interpret other implicit fundamental rights[5] that may not get much attention in country constitutions. With only implicit understanding of some fundamental rights, decisions made by courts can either be stalled for years by other courts that object, or rulings may be overturned, even if they expand rights, rights to be safe, rights not to be harassed, rights to live free of pollution, or rights for children to not be subject to bullying. These are thought foundational things, that underscore rights to freedom, and courts make decisions that affect rights of others in the future. The difficulty is in interpretation.

Rights according to some constitution

Fundamental rights given by the state is the same in most countries. But there are definitely differences in some rights depending on the constitution, social morals, culture, religion etc. things. According to constitution of Turkey there are certain fundamental rights for civilians like Personal Inviolability, Material and Spiritual Entity[6] of the individual, Prohibition of Forced Labor, Personal Liberty and Security, Privacy and Protection of Private Life, Freedom of Communication, Freedom of Religion and Conscience, Freedom of Expression and Dissemination of Thought[7], Freedom of the Press and many more.

But a two very important I have found in this constitution about not exercising the fundamental rights in certain situations. Those are:

1) Restriction of Fundamental Rights and Freedoms

ARTICLE 13. Fundamental rights and freedoms may be restricted by law, in conformity with the letter and spirit of the Constitution, with the aim of safeguarding the indivisible integrity of the State with its territory and nation, national sovereignty[8], the Republic[9], national security, public order, general peace, the public interest, public morals and public health, and also for specific reasons set forth in the relevant Articles of the Constitution.

2) Suspension of the Exercise of Fundamental Rights and Freedoms

ARTICLE 15. In times of war, mobilization[10], martial law[11], or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated.

In the second case it is may be a common phenomenon in most countries, but the first point may differ from culture to culture. Thus depending on the circumstances here are some actual facts presented where the punishment is given maintaining the fundamental rights in mind, and somewhere it is not considered for the victim.

A case on the EU constitution or the Lisbon Treaty

The European Court of Justice has already made it clear in at least two cases that:

The fundamental rights recognized by the Court are not absolute, but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community…

 and in a later case stated that:

 It is well established in the case law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organization of the market …

 Lisbon Treaty or renamed EU Constitution should propose to come into force so that the Europeans would rely on the European Court of Justice to rule in favor of citizens or workers if a dispute arose between them and their government regarding the interpretation of any of the measures proposed in the Charter.

 It is clear from these precedents that the ‘fundamental rights’ that would be conferred on the Europeans by the Lisbon Treaty would not be fundamental at all but could be varied or restricted in the interests of a ‘common organization of the market’[12] or to advance ‘objectives of general interest pursued by the Community’.

 In a democratic society[13], restrictions on the exercise of human rights must be prescribed by law and must be necessary to safeguard the common good. It follows from the reasoning of the European Court of Justice that, as rights are subject to limitations, restrictions on the EU fundamental rights are also legitimate, and that the European Union acts as a state in restricting those rights.

 LGBT rights in India

 Homosexual[14] intercourse was a criminal offence until 2009 under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have “carnal intercourse against the order of nature.” This law was struck down by the 2009 Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi, which found Section 377 and other legal prohibitions against same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

 Decisions of a High Court on the constitutionality of a law are applicable throughout India, and not only to the territory of the state over which the High Court in question has jurisdiction. However, even after the pronouncement of verdict[15], there have been (rare) incidents of harassment of homosexual groups.

While a hearing of a bunch of appeals filed against decriminalization of gay sex was going on, on the 16 of February 2012, , the Supreme Court observed that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time.

Justices G S Singhvi and S J Mukhopadhaya, the two-judge bench, opined that homosexuality should be seen in the light of changing times where phenomena of live-in relationship[16], single parents and artificial fertilization[17] have become normal. The apex court bench, however, observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse. They had also pointed out that many things, which were considered immoral 20 years ago, have become acceptable to society now. Senior Advocate Amrendra Sharan, who opposed the Delhi High Court order of decriminalizing gay sex on behalf of the Delhi Commission for Protection of Child Rights, had then submitted that social issues cannot be decided on the basis of sculptures.

This is highly immoral and against the social order,” the Home Ministry told the apex court. However, on 23 February 2012, the Union Home Ministry of the UPA government replying to a Supreme Court observation, told the Supreme Court that it was opposed to the decriminalization of gay sex. “It said that India’s moral and social values were different from other countries, and therefore, the nation should not be guided by them.

Same-sex marriages are not legal in India. But that did not stop a Gurgaon court from effectively recognizing a marriage between two lesbians.

Issue regarding death penalty in countries

What is Capital punishment?  Capital punishment [18]is the death penalty.  It is used today and was used in ancient times to punish a variety of offenses.

Capital punishment was legal until 1972, when the Supreme Court declared it unconstitutional[19] in Furman v. Georgia stating that it violated the Eight and Fourteen Amendments citing cruel and unusual punishment. Today, one of the most debated issues in the Criminal Justice System is the issue of capital punishment or the death penalty. However, in 1976, the Supreme Court reversed itself with Gregg v. Georgia and reinstated the death penalty but not all states have the death penalty.  When the word death penalty is used, it makes yelling and screaming from both sides of extremist.  One side may say deterrence, while the other side may say, but you may execute an innocent man.

The argument here is – Is life imprisonment[20] a crueler fate?”    Is there evidence supporting the usefulness of the death penalty securing the life of the citizens? Death is one penalty which makes error irreversible and the chance of error is inescapable when based on human judgment.  On the contrary, sometimes defendants insist on execution.  They feel it is an act of kindness to them.

Does the death penalty give increased protection against being murdered?  This argument for continuation of the death penalty is most likely a deterrent, but it has failed as a deterrent.

Capital punishment has been used in almost every part of the world, but in the last few decades many countries have abolished it. Usage of capital punishment is usually broken into the four categories set out below. Thus today many countries do not practice death penalty thinking about the cruelty against humanity.  Of the 194 independent states that are UN members or have UN observer status:

  • 98 (51%) have abolished it.
  • 7 (4%) retain it for crimes committed in exceptional circumstances (such as in time of war).
  • 49 (25%) permit its use for ordinary crimes, but have not used it for at least 10 years and are believed to have a policy or established practice of not carrying out executions, or it is under a moratorium.
  • 40 (21%) maintain the death penalty in both law and practice.

This is also done to maintain the fundamental rights of a particular person, because out of all rights the first priority is the ‘right to live’. Taking this principle into concern all these states have decided not to give death penalty as a punishment.

Personal Opinions about these cases

Writing about my own views at first I should talk about the homosexual matter. In many countries it is said to be a normal thing now, people can be attracted to same sex gender that we call as Gay or Lesbians. But if I am asked to give an honest opinion about whether it’s real or a mental disorder, honestly my answer would be the second one.

To top it all, homosexuality is classed as illegal under an outdated old law that prohibits “unnatural” sexual acts, resulting in a punishable offense. This legal stance has made it virtually impossible for the Indian queer community to be completely open about their sexuality. If this is completely a normal matter then why this is not accepted altogether in the world like all other normal desires of life? And another thing is how many homosexual people we could have found before 1960 or 70’s? Then why so many now? If it is for real then there should have been cases before also.

Another important thing in this context is the number of these types of people is more in western than in any other parts. That’s a funny fact, because in Middle East or south East Asia the number is very less even in some countries minimal. An American citizen says ‘While it is real, it is not some genetic trait that forces you to be attracted to the same sex. In all seriousness, it is a psychological disorder coming from a traumatic experience growing up. That is the consensus of nearly all the real scientific research on the subject. By the way, I am an atheist. So you can’t call me out on my religious views.’

That’s why to me it is a psychological disorder and to give it a good cover, the westerns started to promote it as a normal gesture of human nature. That is why today so in so many countries Gay or lesbian marriage is legal. But in countries where this trait is not common, has a law according to constitution- Any unnatural sex is under a punishable act. In India, Bangladesh, Middle Eastern countries any case of homosexuality should not be granted normally.

So people can say that it will not be an act against fundamental rights, because choosing marriage partner is definitely a right, but not in case of homosexuality in my opinion.

Another issue that we feel where there should be an act of violation of fundamental right is the Death penalty practice. People say that in countries where death penalty is in practice has got more murder rate because normally people often murders another in rush of blood or to take a serious revenge. But here also I support the Death penalty practices for certain reasons.

Death penalty has got certain forms depending on the judicial system or culture of a particular nation. In most countries the punishment is given as an Electric Chair or Hanged till death. But it may look Brutal, but we are in favor of Slaughtering in public. There are two reasons why I support this punishment.

1. The punishment should be given in such a way so that the whole society learns from it and should be equal to everybody. Now when a murderer is slaughtered in front of public, definitely fear is imposed in every hearts no matter how strong it is. For any criminal this is a scene that says that the government is much brutal than you are, and justice is there for any murder. Thus society should learn from it.

2. Punishment should be given keeping it in mind that the criminal is also a human being. In slaughtering the sensation of pain is less than Electric chair or Hanging case.

Thus we support capital punishment or death penalty. If ‘Right to live’ is one of the firm most important fundamental rights, then the person murdered also had the right to be alive. That’s why a murderer if proven should be given death penalty and it he or she should be slaughtered in public.


Fundamental rights are definitely a right that everyone does posses by law or by birth. But there are some certain situations that happens which deserves a punishment that may violate the right of that person. In these matters the judicial or court has got a law that says: “Fundamental rights and freedoms may be restricted by law, in conformity with the letter and spirit of the Constitution, with the aim of safeguarding the indivisible integrity of the State with its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health, and also for specific reasons set forth in the relevant Articles of the Constitution”. In many issues a verdict in one state may not match with the judicial system of another state. But the verdict should be given keeping the betterment of the society as a whole, not of any particular individual. If this can be done then I hope there won’t be any misinterpretation about any law or court.


Lori Ornelles., (21 May, 1997). In Death penalty Arguments. Retrieved July 21 from http://www.prodeathpenalty.com/ornellaspaper.htm

Mukta Gupta., (n.d). In On the basis of Fundamental rights and interest of justice cases fall under section 302 IPC can be transfer to Crime Branch. Retrieved July 21 from http://www.lawyersclubindia.com/judiciary/On-the-basis-of-Fundamental-rights-and-interest-of-justice-cases-fall-under-section-302-IPC-can-be-transfer-to-Crime-Branch-

Unknown author., (n.d). In Common market organization of the cap. Retrieved July 22 from http://europedia.moussis.eu/books/Book_2/6/21/04/?all=1

Unknown author., (n.d). In Definition of a Democratic Society. Retrieved July 22 from http://www.dwatch.ca/democracy.html

Unknown author., (n.d). In LGBT rights in India. Retrieved July 21 from http://en.wikipedia.org/wiki/LGBT_rights_in_India

Unknown author., (n.d). In Life Imprisonment . Retrieved July 21 from http://en.wikipedia.org/wiki/Life Imprisonment

Unknown author., ( 18 July, 2012). In Military sued over al-Awlaki Yemen drone death. Retrieved July 22 from http://www.bbc.co.uk/news/world-us-canada-18896232

Unknown author., ( n.d).In Republic of Turkey ,Ministry of Foreign affairs. Retrieved July 22 from http://www.constitution.org/cons/turkey/part2.htm

Unknown author., (n.d).InSchool desegregation and Equal Educational Opportunity. Retrieved July 22 from http://www.civilrights.org/resources/civilrights101/desegregation.html

Unknown author., (n.d). In The Dissemination of Thought. Retrieved July 21 from http://disseminatedthought.wordpress.com/2979.asp#.UAvvwKBSQ48

Unknown author., ( n.d).In What are Fundamental rights. Retrieved July 22 from http://www.wisegeek.com/what-are-fundamental-rights.htm

Unknown author., (03 March 2011). In What is Artificial Insemination? Retrieved July 22 from


[1]Rules of a state or a region, may include religion also

[2] See http://www.wisegeek.com/what-are-fundamental-rights.htm
[3] See http://www.civilrights.org/resources/civilrights101/desegregation.html
[4] See http://en.wikipedia.org/wiki/Abortion_law
[5] Rights that are implicit e.g. privacy, wage limits, working hours etc.
[6] See http://www.constitution.org/cons/turkey/part2.htm
[7] See http://disseminatedthought.wordpress.com/
[8]See http://en.wikipedia .org/wiki/National sovereignty
[9] See http://en.wikipedia.org/wiki/Republic
[10] See http://en.wikipedia.org/wiki/mobilization
[11] See http://en.wikipedia.org/wiki/martial law
[12] See http://europedia.moussis.eu/books/Book_2/6/21/04/?all=1
[13] See http://www.dwatch.ca/democracy.htm
[14] See http://www.merriam-webster.com/dictionary/homosexual
[15] See http://en.wikipedia.org/wiki/Verdict
[16] See http://en.wikipedia.org/wiki/Cohabitation
[17] See http://www.medicalnewstoday.com/articles/217986.php
[18] See http://www.prodeathpenalty.com/ornellaspaper.htm
[19] See http://wiki.answers.com/Q/what _does_unconstitutional_mean
[20] See http:en.wikipedian.org/wiki/life imprisonment