Posted in UPSC

Criticism to Fundamental Rights

Read it later

Criticism to Fundamental Rights

The Fundamental Rights enshrined in Part III of the Constitution have met with wide and varied criticism. The arguments of the critics are:

1. Excessive Limitations

They are subjected to innumerable exceptions, restrictions, qualifications, and explanations. Hence, the critics remarked that the Constitution grants Fundamental Rights with one hand and takes them away with the other. Jaspat Roy Kapoor went to the extent of saying that the chapter dealing with the fundamental rights should be renamed as ‘Limitaions on Fundamental Rights’ or ‘Fundamental Rights and Limitations Thereon’.

2. No Social and Economic Rights

The list is not comprehensive as it mainly consists of political rights. It makes no provision for important social and economic rights like the right to social security, right to work, right to employment, right to rest and leisure and so on. These rights are made available to the citizens of advanced democratic countries. Also, the socialistic constitutions of erstwhile USSR or China provided for such rights.

3. No Clarity

They are stated in a vague, indefinite and ambiguous manner. The various phrases and words used in the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not clearly defined. The language used to describe them is very complicated and beyond the comprehension of the common man. It is alleged that the Constitution was made by the lawyers for the lawyers. Sir Ivor Jennings called the Constitution of India a ‘paradise for lawyers’.

4. No Permanency

They are not sacrosanct or immutable as the Parliament can curtail or abolish them, as for example, the abolition of the fundamental right to property in 1978. Hence, they can become a play tool in the hands of politicians having majority support in the Parliament. The judicially innovated ‘doctrine of basic structure’ is the only limitation on the authority of Parliament to curtail or abolish the fundamental right.

5. Suspension During Emergency

The suspension of their enforcement during the operation of National Emergency (except Articles 20 and 21) is another blot on the efficacy of these rights. This provision cuts at the roots of the democratic system in the country by placing the rights of the millions of innocent people in continuous jeopardy. According to the critics, the Fundamental Rights should be enjoyable in all situations—Emergency or no Emergency.

6. Expensive Remedy

The judiciary has been made responsible for defending and protecting these rights against the interference of the legislatures and executives. However, the judicial process is too expensive and hinders the common man from getting his rights enforced through the courts. Hence, the critics say that the rights benefit mainly the rich section of the Indian Society.

7. Preventive Detention

The critics assert that the provision for preventive detention (Article 22) takes away the spirit and the substance of the chapter on fundamental rights. It confers arbitrary powers on the State and negates individual liberty. It justifies the criticism that the Constitution of India deals more with the rights of the State against the individual than with the rights of the individual against the State. Notably, no democratic country in the world has made preventive detention as an integral part of their Constitutions as has been made in India.

8. No Consistent Philosophy

According to some critics, the chapter on fundamental rights is not the product of any philosophical principle. Sir Ivor Jennings expressed this view when he said that the Fundamental Rights proclaimed by the Indian Constitution are based on no consistent philosophy.25 The critics say that this creates difficulty for the Supreme Court and the high courts in interpreting the fundamental rights.

SIGNIFICANCE OF FUNDAMENTAL RIGHTS

In spite of the above criticism and shortcomings, the Fundamental Rights are significant in the following respects:

  1. They constitute the bedrock of democratic system in the country.
  2. They provide necessary conditions for the material and moral protection of man.
  3. They serve as a formidable bulwark of individual liberty.
  4. They facilitate the establishment of rule of law in the country.
  5. They protect the interests of minorities and weaker sections of society.
  6. They strengthen the secular fabric of the Indian State.
  7. They check the absoluteness of the authority of the government.
  8. They lay down the foundation stone of social equality and social justice.
  9. They ensure the dignity and respect of individuals.
  10. They facilitate the participation of people in the political and administrative process.

RIGHTS OUTSIDE PART III

Besides the Fundamental Rights included in Part III, there are certain other rights contained in other parts of the Constitution. These rights are known as constitutional rights or legal rights or nonfundamental rights. They are:

  1. No tax shall be levied or collected except by authority of law (Article 265 in Part XII).
  2. No person shall be deprived of his property save by authority of law (Article 300-A in Part XII).
  3. Trade, commerce and intercourse throughout the territory of India shall be free (Article 301 in Part XIII).
  4. The elections to the Lok Sabha and the State Legislative Assembly shall be on the basis of adult suffrage (Article 326 in Part XV).

Even though the above rights are also equally justiciable, they are different from the FundamentalRights. In case of violation of a Fundamental Right, the aggrieved person can directly move theSupreme Court for its enforcement under Article 32, which is in itself a fundamental right. But, in case of violation of the above rights, the aggrieved person cannot avail this constitutional remedy. He can move the High Court by an ordinary suit or under Article 226 (writ jurisdiction of the high court).

Articles Related to Fundamental Rights at a Glance

Article No. Subject-matter
General  
12. Definition of State
13. Laws inconsistent with or in derogation of the Fundamental Rights
Right to Equality
14. Equality before law
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
16. Equality of opportunity in matters of public employment
17. Abolition of untouchability
18. Abolition of titles
19. Protection of certain rights regarding freedom of speech, etc.
20. Protection in respect of conviction for offences
21. Protection of life and personal liberty
21A. Right to education
22. Protection against arrest and detention in certain cases
Right against Exploitation
23. Prohibition of traffic in human beings and forced labour
24. Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion
26. Freedom to manage religious affairs
27. Freedom as to payment of taxes for promotion of any particular religion
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
Cultural and Educational Rights
29. Protection of interests of minorities
30. Right of minorities to establish and administer educational institutions
31. Compulsory acquisition of property—(Repealed)
Saving of Certain Laws
31A. Saving of laws providing for acquisition of estates, etc.
31B. Validation of certain Acts and Regulations
31C. Saving of laws giving effect to certain directive principles
31D. Saving of laws in respect of anti-national activities—(Repealed)
Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this part
32A. Constitutional validity of State laws not to be considered in proceedings under Article 32—(Repealed)
33. Power of Parliament to modify the rights conferred by this part in their application to forces, etc.
34. Restriction on rights conferred by this part while martial law is in force in any area
35. Legislation to give effect to the provisions of this part
Test your preparation of polity in this fun filled test 
How to Prepare Polity for UPSC?

Help us by contributing and making this site better by commenting below or mailing us at discussanswer@gmail.com . You can send us articles and suggestions .

Read it later
Advertisements

Add Value by comment