top banner common photo

CRITICISM OF FUNDAMENTAL RIGHTS

Part III of the Constitution's Fundamental Rights have been met with a wide range of criticism. The detractors' arguments are as follows:

1. Excessive Limitations:

Countless exceptions, restrictions, qualifiers, and explanations apply to them. As a result, critics asserted that the Constitution bestows Fundamental Rights on one hand while removing them on the other. Jaspat Roy Kapoor even went so far as to suggest that the chapter on fundamental rights be titled 'Limitations on Fundamental Rights' or 'Fundamental Rights and Limitations Thereon.'

2. No Social and Economic Rights:

The list isn't exhaustive because it focuses on political rights. Important social and economic rights such as the right to social security, the right to work, the right to employment, the right to rest and leisure, and so on are not addressed. Citizens of advanced democratic countries have access to these rights. Such rights were also included in the socialist constitutions of the former USSR and China.

3. No Clarity:

They are stated in a hazy, ambiguous, and vague manner. The many concepts and terminology used throughout the chapter, such as "public order," "minorities," "reasonable restriction," "public interest," and so on, are not defined. The terminology used to describe them is extremely convoluted and beyond the comprehension of the average person. The Constitution is said to have been written by lawyers for lawyers. The Indian Constitution, according to Sir Ivor Jennings, is a "heaven for lawyers."

4. No Permanency:

They are not inviolable or unchangeable because the Parliament can limit or remove them, as the fundamental right to property was abolished in 1978. As a result, they can be used as a political instrument by politicians who have a majority in Parliament. The only restraint on Parliament's capacity to modify or eliminate the fundamental right is the judicially invented 'doctrine of basic structure.'

5. Suspension during Emergency:

The suspension of their enforcement (save for Articles 20 and 21) during the National Emergency is another another blemish on these rights' efficacy. This clause strikes at the heart of the country's democratic system, putting the rights of millions of innocent people in constant peril. According to critics, Fundamental Rights should be enjoyed in all situations, whether there is an emergency or not.

6. Expensive Remedy:

The judiciary has been charged with defending and upholding fundamental rights against legislative and executive intervention. However, the judicial procedure is prohibitively expensive for the average person to have his or her rights enforced through the courts. As a result, critics argue that the rights mostly benefit the wealthy in India.

7. Preventive Detention:

The provision for preventative detention (Article 22), according to opponents, takes away the spirit and substance of the chapter on basic rights. It gives the state arbitrary authority and eliminates individual liberty. It justifies the argument that India's Constitution is more concerned with the state's rights against the individual than with the individual's rights against the state. Notably, no other democratic country in the world has made preventative detention a part of its constitution like India does.

8. No Consistent Philosophy:

Some opponents claim that the chapter on fundamental rights is not based on any philosophical principles. Sir Ivor Jennings articulated this viewpoint when he stated that the Indian Constitution's Fundamental Rights are founded on no cohesive concept. According to critics, this makes it difficult for the Supreme Court and high courts to interpret fundamental rights.

Tags: Law, Juggement, lawyer, Cases