Critical Evaluation of Fundamental Rights
The Fundamental Rights do not comprise over a number of important economic and social rights such as the right to work, rest and leisure, education and social security. These rights were conspicuously mentioned in the Constitutions of communist countries like the USSR.
The criticism is hardly justified because the State is not in a position to guarantee such rights in practice immediately. The enforcement of the Right to Employment, for instance, would not only involve gigantic resources, but a complete control of all economic activity of the country by the State. Neither of these factors is available in India, characterised as a country with limited resources and a mixed economic structure.
Another criticism points out that the restrictions, exceptions and explanations with which the fundamental rights are hedged around, have the effect of depriving the rights in practices.
One member of the Constituent Assembly suggested with unconcealed scarcasm, that Fundamental Rights might be more appropriately entitled, “Limitations on Fundamental Rights”. However, the very circumstances in which our country got freedom emphasised the need to spell out restrictions.
Another point of criticism is that there is a vast gap between the fundamental rights guaranteed in the Indian Constitution and reality of these rights in India today.
It is pointed out that legal costs render the issue of enforcing fundamental rights beyond the means of the ordinary citizen of India – the majority of whom are very poor.
It is undeniable that the Fundamental Rights have generally proven useful in protecting the rights of the political opponents of the government against the might of the State. The defects in the enforcement of the rights cannot be ascribed to their existence in-the Constitution.
The provision for Preventive Detention and the suspension of Fundamental Rights has also been criticised deeply. Further, critics point out that although Art. 17 has constitutionally prohibited untouchability, the evil still exists in many parts of the country.
There is, no doubt, some force in these criticisms but for a correct judgement, the problem must be viewed in a proper perspective. Preventive detention is undoubtedly an unsightly arrangement, but it is also, unfortunately, a necessary provision.
It must be remembered that the Constitution of India was prepared at a time when the country was passing through extraordinary stress and strain. The forces of disintegration that raised their head subsequently and menaced the very existence of the young republic called for drastic measures to ensure the security of the social order. By acting as a deterrent against the would-be malefactors, the provision of Preventive Detention may be said to have helped India’s infant democracy to survive teething troubles.
The Fundamental Rights were intended to serve three important purposes namely:
- To prevent the executive from acting arbitrarily.
- To ensure some amount of security and protection to various types of minorities.
- To promote and foster social revolution by establishing the conditions necessary for achieving justice, social, economic and political.
The Fundamental Rights, as contained in Part III of the Constitution, are neither rooted in the doctrine of natural law nor are they based on the theory of ‘reserved rights’. They are conferred rights and embody the social values of the present generations.
As the social values are not static, the Fundamental Rights are subject to changes and modifications in order to fulfill the aspirations of the people in the context of changed conditions and the environment in which they live.
It was, therefore, not the intention of the Constitution-framers to render the rights sacrosanct, otherwise they would not have ventured to strike a balance or effectuate reconciliation between them and the need and the welfare of the society as a whole.
Significance of Fundamental Rights
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity.
The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State.
According to them, “Democracy” is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.
All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights.
It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as “Public interest litigation”.
In some cases, High Court judges have acted on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India.
The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens.
The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.
For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare.
They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended.
However, the Parliament cannot alter the basic structure of the constitution. Since the fundamental rights can be altered only by a constitutional amendment, their inclusion is a check not only on the executive branch but also on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws that go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.
Latest Addition to the List of Fundamental Rights
Every change to the fundamental rights needs a constitutional amendment, which further requires the approval of two-thirds of the members of Parliament.
One such amendment came into effect on 2002 when Article 21 A was included to make the right to education at elementary level as one of the fundamental rights.
The Act also made it mandatory for private educational institutions to reserve 25 per cent seats for children belonging to the weaker sections of society.