Evaluation of Fundamental Rights

Criticism of Fundamental Rights

Although Part III of the Constitution is called the Magna Carta of India, it has faced several criticisms from scholars, political thinkers, and even from ordinary citizens. Let us analyse these criticisms one by one.

Excessive Limitations

• Fundamental Rights are not absolute. They come with reasonable restrictions, exceptions, qualifications, and explanations.
• Critics say: “Constitution gives rights with one hand, and takes them away with the other.”
• Jaspat Roy Kapoor even joked that this chapter should be renamed as:
  • “Limitations on Fundamental Rights” or
  • “Fundamental Rights and Limitations Thereon.”

Lack of Social and Economic Rights

• Our FRs mainly guarantee political rights (speech, equality, religion, etc.), not socio-economic rights like:
  • Right to work,
  • Right to rest and leisure,
  • Right to social security,
  • Right to employment.
• Such rights exist in advanced democracies (like Western Europe) and in socialist constitutions (like former USSR or China).
• In India, socio-economic rights were pushed into Directive Principles (Part IV), making them non-justiciable.

Lack of Clarity

• Many terms used are vague and undefined — like “reasonable restrictions,” “public order,” “minorities,” “public interest.”
• This vagueness leads to confusion and excessive litigation.
• Language is so complex that ordinary citizens struggle to understand it.
• Hence, critics say: “The Constitution was made by lawyers for lawyers.”
• Sir Ivor Jennings even called it a “paradise for lawyers.”

No Permanency

• FRs are not immutable. Parliament can curtail or even abolish them via constitutional amendments.
• Example: Right to Property (originally a Fundamental Right) was abolished in 1978.
• Critics argue: Rights should not depend on political majorities in Parliament.
• Only safeguard today = Doctrine of Basic Structure (judicial innovation), not the Constitution itself.

Suspension During Emergency

• During a National Emergency, most FRs can be suspended (except Articles 20 and 21).
• This creates fear: rights of millions of innocent citizens can vanish overnight.
• Critics say: “Fundamental Rights should be protected in all circumstances — emergency or not.”
• Otherwise, democracy itself is in danger.
• Example: 1975 Emergency → large-scale suspension of rights.

Expensive Remedy

• Yes, citizens can enforce rights via Supreme Court (Art. 32) or High Court (Art. 226).
• But judicial process = costly, lengthy, complicated.
• Common man often cannot afford litigation.
• Hence, in practice, FRs benefit mainly the rich and resourceful classes.

Preventive Detention

• Article 22 allows preventive detention — detention of a person before committing an offence, merely on suspicion.
• Critics say this is undemocratic and draconian.
• No democratic constitution in the world has made preventive detention a permanent feature.
• Example: USA, UK only used it during wartime; India has made it integral to the Constitution.
• Critics argue: This turns FRs upside down → it secures rights of the State against the individual, instead of securing rights of the individual against the State.

No Consistent Philosophy

• Some critics (like Sir Ivor Jennings) argue that FRs in India are not based on any single coherent philosophy.
• They are a mix of American Bill of Rights, British Rule of Law, Irish DPSPs, etc.
• This patchwork approach creates confusion in interpretation.
• Result: Courts often face difficulty in evolving consistent jurisprudence.

✨ Essence

• Fundamental Rights in India are indeed pioneering, but:
  • Too many restrictions,
  • Missing socio-economic rights,
  • Lack of clarity and permanency,
  • Overuse of preventive detention and emergency suspension,
  • And difficulty in access for common citizens.

👉 That’s why critics say: “Our Constitution protects the rights of the State more than the rights of the individual.”

Significance of Fundamental Rights

Even though we discussed the criticisms of Fundamental Rights, we must also see why they are considered the heart and soul of the Constitution. In fact, their importance far outweighs their shortcomings. Let’s break it down:

1. Bedrock of Democracy

Fundamental Rights form the very foundation of Indian democracy.
Without them, our democracy would be hollow because rights are what make freedom meaningful.

2. Protection of Man – Material and Moral

They provide not just political safeguards but also conditions necessary for a person’s material well-being (like right to livelihood, property protections earlier) and moral well-being (like dignity, liberty, equality).

3. Bulwark of Liberty

They act as a powerful shield protecting the individual against the arbitrary authority of the State.
For example, habeas corpus writ ensures no one can be illegally detained.

4. Establish Rule of Law

Fundamental Rights make it clear: No one is above law — not even the government.
Thus, they institutionalize the principle of Rule of Law.

5. Safeguard Minorities and Weaker Sections

Articles like 29 and 30 protect cultural and educational rights of minorities.
Equality provisions under 15 and 16 protect weaker sections through reservations.

6. Strengthen Secularism

They ensure that the State remains neutral in matters of religion — protecting freedom of conscience, practice, and ensuring no official religion.
This strengthens India’s secular character.

7. Limit Government Authority

By placing checks on Parliament and the Executive, FRs prevent India from sliding into authoritarianism.

8. Foundation of Social Equality & Justice

Abolition of untouchability (Art. 17), equality before law (Art. 14), and non-discrimination (Art. 15) together lay the foundation of social justice in India.

9. Dignity of the Individual

As the Preamble promises, Fundamental Rights ensure every individual’s dignity and respect are preserved.

10. Enable Political Participation

Rights like freedom of speech, assembly, association empower citizens to actively participate in political and administrative processes.
Without these, democracy would be merely ornamental.

✅ Essence: Despite limitations, Fundamental Rights are indispensable for democracy, liberty, equality, and justice. They remain the Magna Carta of India.

Rights Outside Part III

Interestingly, not all constitutional rights are housed in Part III. Some equally important rights exist outside it. These are non-fundamental rights, also called constitutional/legal rights:

1. Article 265 (Part XII): No tax shall be levied or collected except by authority of law.
   → Protects citizens from arbitrary taxation.
2. Article 300A (Part XII): No person shall be deprived of his property save by authority of law.
   → Right to property, though no longer a Fundamental Right, remains a legal right.
3. Article 301 (Part XIII): Trade, commerce and intercourse throughout India shall be free.
   → Ensures economic unity of the nation.

Key Difference from FRs

• Fundamental Rights (Part III): If violated → you can directly move Supreme Court under Article 32.
• Non-Fundamental Rights: If violated → you cannot use Article 32. You must approach the High Court under Article 226 or file an ordinary legal suit.

🌟 Closing Thought

Dr. Ambedkar had rightly said that Article 32 is the soul of the Constitution.
Fundamental Rights — despite criticisms — remain the most celebrated feature of Indian democracy, ensuring that the State serves the people, not the other way round.