Criticism of Fundamental Rights – UPSC Notes – Indian Polity

Excessive Limitations

The rights given in Part III of the Constitution, known as Fundamental Rights, have faced a lot of criticism. Critics say there are too many conditions and exceptions attached to these rights. They argue that while the Constitution grants these rights, it also takes them away through various limitations. Some critics, like Jaspat Roy Kapoor, even suggest that the chapter on fundamental rights should be called ‘Limitations on Fundamental Rights‘ or ‘Fundamental Rights and Limitations Thereon.’

Lack of Social and Economic Rights

The list of rights in the Constitution isn’t complete because it mostly includes political rights. It doesn’t include 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 more. These rights are granted to citizens in advanced democratic countries. In contrast, the constitutions of socialist countries like the former USSR or China included provisions for these rights.

Lack of Clarity

The Fundamental Rights are written in a way that is unclear, vague, and ambiguous. The terms used in the chapter, such as ‘public order,’ ‘minorities,’ ‘reasonable restriction,’ ‘public interest,’ and so on, lack clear definitions. The language used to explain them is complicated and not easily understood by the common person. Some argue that the Constitution seems to have been created by lawyers, for lawyers. Sir Ivor Jennings even referred to the Constitution of India as a ‘paradise for lawyers.’

Lack of Permanency

These rights are not permanent or unchangeable, as Parliament has the power to limit or eliminate them. For instance, the fundamental right to property was abolished in 1978. This means that these rights can be influenced by politicians who have majority support in Parliament. The only restriction on Parliament’s authority to limit or abolish these rights is the judicially created ‘doctrine of basic structure.’

Suspension During Emergency

Another drawback is the suspension of enforcing these rights during a National Emergency (except for Articles 20 and 21). This provision is seen as a flaw in the effectiveness of these rights, as it puts the rights of millions of innocent people at continuous risk. Critics argue that Fundamental Rights should be applicable in all situations, whether there is an Emergency or not.

Expensive Remedy

The responsibility of defending and protecting these rights against interference from legislatures and executives is placed on the judiciary. However, the judicial process is costly, making it difficult for the common person to enforce their rights through the courts. Critics argue that as a result, these rights mainly benefit the wealthy section of Indian society.

Preventive Detention

Critics argue that the inclusion of preventive detention (Article 22) undermines the essence and core principles of the fundamental rights chapter. This provision grants the State arbitrary powers and undermines individual liberty. It supports the criticism that the Constitution of India focuses more on the rights of the State against the individual rather than the rights of the individual against the State. Notably, no other democratic country in the world has made preventive detention an integral part of their Constitutions, as India has done.

Lack of Consistent Philosophy

According to some critics, the chapter on fundamental rights lacks a clear philosophical foundation. Sir Ivor Jennings noted that the Fundamental Rights proclaimed by the Indian Constitution are not based on any consistent philosophy. Critics argue that this absence of a clear philosophy creates challenges for the Supreme Court and high courts in interpreting the fundamental rights.

1. FAQ: Why do critics argue that the Fundamental Rights in the Indian Constitution face excessive limitations?

Answer: Critics contend that the rights in Part III of the Constitution, known as Fundamental Rights, are criticized for having numerous conditions and exceptions attached to them. Critics like Jaspat Roy Kapoor suggest that the chapter should be titled ‘Limitations on Fundamental Rights’ or ‘Fundamental Rights and Limitations Thereon,’ expressing concerns that the Constitution grants and simultaneously takes away these rights through various limitations.

2. FAQ: Why is there criticism regarding the lack of social and economic rights in the Indian Constitution’s list of Fundamental Rights?

Answer: Critics argue that the Constitution primarily includes political rights and lacks provisions for essential social and economic rights, such as the right to social security, right to work, and right to rest and leisure. This criticism points out a disparity compared to constitutions of advanced democratic countries and socialist nations like the former USSR or China, which explicitly grant such rights.

3. FAQ: How do critics perceive the lack of clarity in the language used to describe Fundamental Rights in the Indian Constitution?

Answer: Critics argue that the language in the Fundamental Rights chapter is unclear, vague, and ambiguous. Terms like ‘public order,’ ‘minorities,’ ‘reasonable restriction,’ and ‘public interest’ lack precise definitions, and the complexity of the language makes it challenging for the common person to understand. Some critics, including Sir Ivor Jennings, have even referred to the Constitution as a ‘paradise for lawyers.’

4. FAQ: Why are Fundamental Rights in India criticized for lacking permanency?

Answer: Critics point out that Fundamental Rights are not permanent or unchangeable, as Parliament has the power to limit or eliminate them. An example is the abolition of the fundamental right to property in 1978. This criticism highlights the vulnerability of these rights to political influence, with the only restriction being the judicially created ‘doctrine of basic structure.’

5. FAQ: How does the provision for the suspension of Fundamental Rights during a National Emergency impact the effectiveness of these rights?

Answer: Critics argue that the provision allowing the suspension of Fundamental Rights during a National Emergency (except for Articles 20 and 21) is a drawback, putting the rights of millions of innocent people at continuous risk. Critics assert that Fundamental Rights should be applicable in all situations, regardless of the existence of an Emergency, to ensure consistent protection for individuals.

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