- THE FUNDAMENTAL RIGHTS – 11
- Criticisms to Fundamental Rights
- Article 14
- Status of Right to Property
THE FUNDAMENTAL RIGHTS – 11
Criticisms to Fundamental Rights
Article 14 : The ideal of equality does not come with exceptions. The constitution makers did not envision absolute equality. To attain the ideal of equality, the State has to take affirmative actions for promoting the welfare and status of socially and economically backward sections of society. Thus, the classification of individuals and groups for differential treatment through laws is allowed.
Article 15: Positive discrimination by the State is allowed. Special laws for protecting the rights and promoting the welfare of women, children, Scheduled Castes, Scheduled Tribes and other Backward Classes are allowed.
Article 16: Reservation for SCs, STs and OBCs in public employment is a positive discrimination.
Article 19: Though freedom is a birthright, it is not absolute. It is subjected to ‘reasonable restrictions’. The restrictions are held reasonable, if they upheld public interest over an individual’s interest.
Article 21: Life and personal liberty can be curtailed by procedure established by law. For example, liberty can be curtailed by punitive detention.
- Difficult Language and Vague Terms:The constitution is beyond the understanding of a common man because of the complex language and terms used in it. Some of the significant terms such as ‘Minority’, ‘Untouchability’,‘Reasonable Restrictions’, ‘Public Order’, ‘Public Interest’, etc are left undefined, thus creating ambiguity.
- Non Permanent Rights: Though the fundamental rights are special, they are still legal rights guaranteed by the State. Thus, the Parliament is empowered to curtail it by law. The doctrine of ‘Basic Structure’ propounded by the Supreme Court places limitations on the power of the Parliament to amend these rights.
- Not Social and Economic Rights: The fundamental rights are basically political rights. The civil and political rights of individuals and groups are protected under Part III. But, social and economic rights are covered under non justiciable Directive Principles of State Policy.
- Preventive Detention: Preventive detention is a major blow to the right to personal liberty guaranteed in the constitution. Curtailing the liberty of individuals, who are not proven guilty, violates the natural and fundamental right of freedom of individuals.
- Expensive Judicial Remedy: The Supreme Court and the High Courts are authorised to protect the fundamental rights of individuals in the events of violations. But, the judicial processes involved are time consuming and expensive.
- Suspension during National Emergency:Except for the rights guaranteed under articles 20 and 21, all other rights are suspended during national emergency. This shows the non-permanent nature of these rights.In addition to this, articles 33 and 34 prescribes extensive limitations on the rights of personnel working in armed and police forces and people living in areas under martial rule.
- No Consistent Philosophy: There is no one identifiable philosophy on which the rights are based.
Status of Right to Property
The 44th constitutional amendment act, 1978 repealed articles 19(1)(f) and 31, that guaranteed right to property as a fundamental right. A new article, 300A was added under Part XII and right to property was made as a legal right under this article.
Article 300A: It says that no person shall be deprived of his property except by the authority of law.
Right to property as a legal right has the following implications
- Amending article 300A does not require a constitutional amendment act. It can be amended by an ordinary law of Parliament.
- The right to property is not protected against the legislative actions.
- When the right is violated, the aggrieved person cannot seek remedy from the Supreme Court under article 32. However he can approach the High Court under article 226.
- The right of individuals to compensation for the acquisition or requisition of private properties by the State is not guaranteed.