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Criticism & Significance of Fundamental Rights

Amith

Criticism of Fundamental Rights (FRs)

👉 Critics point out the following problems:

  1. Excessive Limitations

    • Rights are full of exceptions, restrictions, qualifications.

    • “Given with one hand, taken away with the other.” – Jaspat Roy Kapoor.

    • Example: Freedom of Speech (Art. 19) restricted for public order, morality, security etc.

  2. No Social & Economic Rights

    • Only civil & political rights given.

    • Missing: Right to work, health, social security, rest, leisure etc.

    • Other constitutions (USSR, China) included them.

    • In India → put under DPSPs (Part IV), not FRs.

  3. Lack of Clarity

    • Terms like reasonable restriction, public order, minorities not defined clearly.

    • Too legalistic → “Paradise for lawyers” – Sir Ivor Jennings.

  4. No Permanency

    • FRs not sacrosanct → can be curtailed/removed by Parliament.

    • Example: Right to Property abolished in 1978 (44th Amendment).

    • Only protection: Basic Structure Doctrine (Parliament can’t change basic features).

  5. Suspension During Emergency

    • During National Emergency, FRs (except Art. 20 & 21) can be suspended.

    • Critics: Rights must be available in all situations, otherwise democracy is in danger.

  6. Expensive Remedy

    • Only SC/HC can enforce FRs → court cases are costly.

    • Rich people benefit more, poor find it hard.

  7. Preventive Detention (Art. 22)

    • Person can be jailed without trial (up to 1 year).

    • Critics: Against liberty, arbitrary state power.

    • Rare in democracies → but made part of Indian Constitution.

  8. No Consistent Philosophy

    • FRs are a mix of liberal + socialist + Gandhian + colonial ideas.

    • Not based on one single principle → confusing for courts to interpret.

Significance of Fundamental Rights (FRs)

  1. They are the foundation of Indian democracy.

  2. They protect liberty and dignity of individuals.

  3. They ensure equality and social justice.

  4. They safeguard minorities and weaker sections.

  5. They act as a check on arbitrary government power.

  6. They uphold the Rule of Law.

  7. They strengthen secularism in India.

  8. They lay the base for social equality and justice.

  9. They ensure respect and dignity of every person.

  10. They encourage people’s participation in governance.

Rights Outside Part III (Not Fundamental Rights, but enforceable)

📌 Meaning:

  • Apart from Fundamental Rights (Part III), the Constitution gives some other important rights in different parts.

  • These are also enforceable in courts, but they are not Fundamental Rights.

✅ Examples

  1. Article 265 (Part XII) – No Tax Without Law

    • Govt cannot collect any tax unless Parliament/State legislature has passed a law for it.

    • Example: If govt suddenly says “Pay ₹500 as oxygen tax” without law → Illegal.

  2. Article 300A (Part XII) – Right to Property

    • Earlier a Fundamental Right (Art. 31), but abolished in 1978 (44th Amendment).

    • Now, it’s only a legal right → you can go to court if property is taken without law.

    • But you cannot use Art. 32 (direct SC).

  3. Article 301 (Part XIII) – Freedom of Trade, Commerce & Intercourse

    • Trade and movement of goods should be free across India.

    • Example: Karnataka cannot stop Tamil Nadu trucks from selling vegetables in Bengaluru.

  4. Article 326 (Part XV) – Right to Vote (Adult Suffrage)

    • Every citizen 18+ has the right to vote in Lok Sabha & State Assembly elections.

    • Basis: One person, one vote, one value.

⚖️ Difference from Fundamental Rights

  • If FR is violated → You can directly go to Supreme Court under Art. 32.

  • If these rights are violated → You cannot use Art. 32.

    • Remedy: High Court (Art. 226) or normal courts.

👉 That’s why they are called “Constitutional Rights / Legal Rights” but not Fundamental Rights.

🎤 Classroom Example:

“Friends, imagine govt suddenly says ‘Pay ₹1000 extra for using road’. If there is no law, you can challenge it → That’s Article 265.
If govt takes your land without compensation → You can fight under Article 300A.
If a state blocks goods from another state → Against Article 301.
If someone stops you from voting when you’re 18+ → Against Article 326.

But remember — these are not Part III rights. So, unlike Fundamental Rights, you cannot go directly to Supreme Court under Art. 32. You must go to High Court or lower courts.”

“Friends, FRs are the backbone of democracy, but they are not perfect. Too many restrictions, lack of social/economic rights, vague words, suspension during Emergency, and costly remedies make them weaker. Still, FRs protect our liberty, equality, and dignity.

Also remember, there are other important rights in the Constitution like – No tax without law, Right to Property, Free Trade, and Right to Vote – but they are not Fundamental Rights. That’s why we call them ‘Rights outside Part III’.”

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