jbp123/hello · Datasets at Hugging Face

instruction stringlengths 1 84	input stringlengths 1 85	output stringlengths 1 83
breakdown of law and order three grounds–war, external	due to any reason. aggression or armed	rebellion.
of it.	5. I t has no specific provision in 5. I t has specific and detailed	the Constitution. It is implicit. provision in the Constitution.
It is explicit.	The expression‘members of the armed forces’ also covers such	employees of the armed forces as barbers, carpenters, mechanics,
cooks, chowkidars, bootmakers, tailors who are non-combatants.	A parliamentary law enacted under Article 33 can also exclude the	court martial (tribunals established under the military law) from the writ
MARTIAL LAW AND FUNDAMENTAL RIGHTS	Article 34 provides for the restrictions on fundamental rights while	martial law is in force in any area within the territory of India. It
empowers the Parliament to indemnify any government servant or any	other person for any act done by him in connection with the	maintenance or restoration of order in any area where martial law was
in force. The Parliament can also validate any sentence passed,	punishment inflicted, forfeiture ordered or other act done under martial	law in such area.
The Act of Indemnity made by the Parliament cannot be challenged	in any court on the ground of contravention of any of the fundamental	rights.
The concept of martial law has been borrowed in India from the	English common law. However, the expression ‘martial law’ has not	been defined anywhere in the Constitution. Literally, it means ‘military
rule’. It refers to a situation where civil administration is run by the	military authorities according to their own rules and regulations framed	outside the ordinary law. It thus imply the suspension of ordinary law
and the government by military tribunals. It is different from the military	law that is applicable to the armed forces.	There is also no specific or express provision in the Constitution
that authorises the executive to declare martial law. However, it is	implicit in Article 34 under which martial law can be declared in any	area within the territory of India. The martial law is imposed under the
extraordinary circumstances like war, invasion, insurrection, rebellion,	riot or any violent resistance to law. Its justification is to repel force by	force for maintaining or restoring order in the society.
During the operation of martial law, the military authorities are	vested with abnormal powers to take all necessary steps. They	impose restrictions and regulations on the rights of the civilians, can
punish the civilians and even condemn them to death.	The Supreme Court held that the declaration of martial law does	not ipso facto result in the suspension of the writ of habeas corpus.
The declaration of a martial law under Article 34 is different from	the declaration of a national emergency under Article 352. The	differences between the two are summarised in Table 7.3.
EFFECTING CERTAIN FUNDAMENTAL RIGHTS	Article 35 lays down that the power to make laws, to give effect to	certain specified fundamental rights shall vest only in the Parliament
and not in the state legislatures. This provision ensures that there is	uniformity throughout India with regard to the nature of those	fundamental rights and punishment for their infringement. In this
direction, Article 35 contains the following provisions:	1. The Parliament shall have (and the legislature of a state shall not	have) power to make laws with respect to the following matters:
(a) Prescribing residence as a condition for certain employments or	appointments in a state or union territory or local authority or	other authority (Article 16).
(b) Empowering courts other than the Supreme Court and the high	courts to issue directions, orders and writs of all kinds for the	enforcement of fundamental rights (Article 32).
(c) Restricting or abrogating the application of Fundamental Rights	to members of armed forces, police forces, etc. (Article 33).	(d) Indemnifying any government servant or any other person for
any act done during the operation of martial law in any area	(Article 34).	2. Parliament shall have (and the legislature of a state shall not have)
powers to make laws for prescribing punishment for those acts that	are declared to be offences under the fundamental rights. These	include the following:
(a) Untouchability (Article 17).	(b) Traffic in human beings and forced labour (Article 23).	Further, the Parliament shall, after the commencement of the
Constitution, make laws for prescribing punishment for the above acts,	thus making it obligatory on the part of the Parliament to enact such	laws.
3. Any law in force at the commencement of the Constitution with	respect to any of the matters specified above is to continue in force	until altered or repealed or amended by the Parliament.
It should be noted that Article 35 extends the competence of the	Parliament to make a law on the matters specified above, even though	some of those matters may fall within the sphere of the state
PRESENT POSITION OF RIGHT TO PROPERTY	Originally, the right to property was one of the seven fundamental	rights under Part III of the Constitution. It was dealt by Article 19(1) (f)
and Article 31. Article 19(1)(f) guaranteed to every citizen the right to	acquire, hold and dispose of property. Article 31, on the other hand,	guaranteed to every person, whether citizen or non-citizen, right
against deprivation of his property. It provided that no person shall be	deprived of his property except by authority of law. It empowered the	State to acquire or requisition the property of a person on two
conditions: (a) it should be for public purpose, and ( b) it should	provide for payment of compensation (amount) to the owner.	Since the commencement of the Constitution, the Fundamental
Right to Property has been the most controversial. It has caused	confrontations between the Supreme Court and the Parliament. It has	led to a number of Constitutional amendments, that is, 1st, 4th, 7th,
25th, 39th, 40th and 42nd Amendments. Through these amendments,	Articles 31A, 31B and 31C have been added and modified from time	to time to nullify the effect of Supreme Court judgements and to
protect certain laws from being challenged on the grounds of	contravention of Fundamental Rights. Most of the litigation centred	around the obligation of the state to pay compensation for acquisition
or requisition of private property.	Therefore, the 44th Amendment Act of 1978 abolished the right to	property as a Fundamental Right by repealing Article 19(1) (f) and
Article 31 from Part III. Instead, the Act inserted a new Article 300A in	Part XII under the heading ‘Right to Property’. It provides that no	person shall be deprived of his property except by authority of law.
Thus, the right to property still remains a legal right or a constitutional	right, though no longer a fundamental right. It is not a part of the basic	structure of the Constitution.
The right to property as a legal right (as distinct from the	Fundamental Rights) has the following implications:	(a) It can be regulated ie, curtailed, abridged or modified without
constitutional amend-ment by an ordinary law of the Parliament.	(b) It protects private property against executive action but not	against legislative action.
remedies including writs) for its enforcement. He can move the	High Court under Article 226.	(d) No guaranteed right to compensation in case of acquisition or
requisition of the private property by the state.	Though the Fundamental Right to Property under Part III has been	abolished, the Part III still carries two provisions which provide for the
guaranteed right to compensation in case of acquisition or requisition	of the private property by the state. These two cases where	compensation has to be paid are:
(a) When the State acquires the property of a minority educational	institution (Article 30); and	(b) When the State acquires the land held by a person under his
personal cultivation and the land is within the statutory ceiling	limits (Article 31 A).	The first provision was added by the 44th Amendment Act (1978),
while the second provision was added by the 17th Amendment Act	(1964).	Further, Articles 31A, 31B and 31C have been retained as
EXCEPTIONS TO FUNDAMENTAL RIGHTS	1. Saving of Laws Providing for Acquisition of Estates,	etc.
Article 31A16 saves five categories of laws from being challenged and	invalidated on the ground of contravention of the fundamental rights	conferred by Article 14 (equality before law and equal protection of
laws) and Article 19 (protection of six rights in respect of speech,	assembly, movement, etc.). They are related to agricultural land	reforms, industry and commerce and include the following:
(a) Acquisition of estates17 and related rights by the State;	(b) Taking over the management of properties by the State;	(c) Amalgamation of corporations;
(d) Extinguishment or modification of rights of directors or	shareholders of corporations; and	(e) Extinguishment or modification of mining leases.
Article 31A does not immunise a state law from judicial review	unless it has been reserved for the president’s consideration and has	received his assent.
This Article also provides for the payment of compensation at	market value when the state acquires the land held by a person under	his personal cultivation and the land is within the statutory ceiling limit.
2. Validation of Certain Acts and Regulations	Article 31B saves the acts and regulations included in the Ninth	Schedule18 from being challenged and invalidated on the ground of
contravention of any of the fundamental rights. Thus, the scope of	Article 31B is wider than Article 31A. Article 31B immunises any law	included in the Ninth Schedule from all the fundamental rights whether
or not the law falls under any of the five categories specified in Article	31A.	However, in a significant judgement delivered in I.R. Coelho
case18a (2007), the Supreme Court ruled that there could not be any	blanket immunity from judicial review of laws included in the Ninth	Schedule. The court held that judicial review is a ‘basic feature’ of the
after April 24, 1973, are open to challenge in court if they violated	fundamentals rights guaranteed under Articles 14, 15, 19 and 21 or	the ‘basic structure’ of the constitution. It was on April 24, 1973, that
the Supreme Court first propounded the doctrine of ‘basic structure’ or	‘basic features’ of the constitution in its landmark verdict in the	Kesavananda Bharati Case.19
Originally (in 1951), the Ninth Schedule contained only 13 acts and	regulations but at present (in 2016) their number is 282.20 Of these,	the acts and regulations of the state legislature deal with land reforms
and abolition of the zamindari system and that of the Parliament deal	with other matters.	3. Saving of Laws Giving Effect to Certain Directive
Principles	Article 31C, as inserted by the 25th Amendment Act of 1971,	contained the following two provisions:
(a) No law that seeks to implement the socialistic directive principles	specified in Article 39(b)21 or (c)22 shall be void on the ground of	contravention of the fundamental rights conferred by Article 14
(equality before law and equal protection of laws) or Article 19	(protection of six rights in respect of speech, assembly,	movement, etc.)
(b) No law containing a declaration that it is for giving effect to such	policy shall be questioned in any court on the ground that it does	not give effect to such a policy.
In the Kesavananda Bharati case23 (1973), the Supreme Court	declared the above second provision of Article 31C as unconstitutional	and invalid on the ground that judicial review is a basic feature of the
Constitution and hence, cannot be taken away. However, the above	first provision of Article 31C was held to be constitutional and valid.	The 42nd Amendment Act (1976) extended the scope of the above
first provision of Article 31C by including within its protection any law	to implement any of the directive principles specified in Part IV of the	Constitution and not merely in Article 39 (b) or (c). However, this
CRITICISM OF FUNDAMENTAL RIGHTS	The Fundamental Rights enshrined in Part III of the Constitution have	met with a wide and varied criticism. The arguments of the critics are:
1. Excessive Limitations	They are subjected to innumerable exceptions, restrictions,	qualifications and explanations. Hence, the critics remarked that the
Constitution grants Fundamental Rights with one hand and takes them	away with the other. Jaspat Roy Kapoor went to the extent of saying	that the chapter dealing with the fundamental rights should be
renamed as ‘Limitaions on Fundamental Rights’ or ‘Fundamental	Rights and Limitations Thereon’.	2. No Social and Economic Rights
The list is not comprehensive as it mainly consists of political rights. It	makes no provision for important social and economic rights like right	to social security, right to work, right to employment, right to rest and
leisure and so on. These rights are made available to the citizens of	advanced democratic countries. Also, the socialistic constitutions of	erstwhile USSR or China provided for such rights.
3. No Clarity	They are stated in a vague, indefinite and ambiguous manner. The	various phrases and words used in the chapter like ‘public order’,
‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not	clearly defined. The language used to describe them is very	complicated and beyond the comprehension of the common man. It is
alleged that the Constitution was made by the lawyers for the lawyers.	Sir Ivor Jennings called the Constitution of India a ‘paradise for	lawyers’.
4. No Permanency	They are not sacrosanct or immutable as the Parliament can curtail or	abolish them, as for example, the abolition of the fundamental right to
innovated ‘doctrine of basic structure’ is the only limitation on the	authority of Parliament to curtail or abolish the fundamental right.	5. Suspension During Emergency
The suspension of their enforcement during the operation of National	Emergency (except Articles 20 and 21) is another blot on the efficacy	of these rights. This provision cuts at the roots of democratic system in
the country by placing the rights of the millions of innocent people in	continuous jeopardy. According to the critics, the Fundamental Rights	should be enjoyable in all situations–Emergency or no Emergency.
6. Expensive Remedy	The judiciary has been made responsible for defending and protecting	these rights against the interference of the legislatures and
executives. However, the judicial process is too expensive and hinders	the common man from getting his rights enforced through the courts.	Hence, the critics say that the rights benefit mainly the rich section of
the Indian Society.	7. Preventive Detention	The critics assert that the provision for preventive detention (Article
22) takes away the spirit and substance of the chapter on fundamental	rights. It confers arbitrary powers on the State and negates individual	liberty. It justifies the criticism that the Constitution of India deals more
with the rights of the State against the individual than with the rights of	the individual against the State. Notably, no democratic country in the	world has made preventive detention as an integral part of their
Constitutions as has been made in India.	8. No Consistent Philosophy	According to some critics, the chapter on fundamental rights is not the
product of any philosophical principle. Sir Ivor Jennings expressed this	view when he said that the Fundamental Rights proclaimed by the	Indian Constitution are based on no consistent phi-losophy.25 The
SIGNIFICANCE OF FUNDAMENTAL RIGHTS	In spite of the above criticism and shortcomings, the Fundamental	Rights are significant in the following respects:
1. They constitute the bedrock of democratic system in the country.	2. They provide necessary conditions for the material and moral	protection of man.
3. They serve as a formidable bulwark of individual liberty.	4. They facilitate the establishment of rule of law in the country.	5. They protect the interests of minorities and weaker sections of
society.	6. They strengthen the secular fabric of the Indian State.	7. They check the absoluteness of the authority of the government.
8. They lay down the foundation stone of social equality and social	justice.	9. They ensure the dignity and respect of individuals.
RIGHTS OUTSIDE PART III	Besides the Fundamental Rights included in Part III, there are certain	other rights contained in other parts of the Constitution. These rights
are known as constitutional rights or legal rights or non-fundamental	rights. They are:	1. No tax shall be levied or collected except by authority of law
(Article 265 in Part XII).	2. No person shall be deprived of his property save by authority of	law (Article 300-A in Part XII).
3. Trade, commerce and intercourse throughout the territory of	India shall be free (Article 301 in Part XIII).	Even though the above rights are also equally justiciable, they are
different from the Fundamental Rights. In case of violation of a	Fundamental Right, the aggrieved person can directly move the	Supreme Court for its enforcement under Article 32, which is in itself a
fundamental right. But, in case of violation of the above rights, the	aggrieved person cannot avail this constitutional remedy. He can	move the High Court by an ordinary suit or under Article 226 (writ
jurisdiction of high court).	Table 7.4 Articles Related to Fundamental Rights at a Glance	Article No. Subject Matter

breakdown of law and order three grounds–war, external

due to any reason. aggression or armed

rebellion.

of it.

5. I t has no specific provision in 5. I t has specific and detailed

the Constitution. It is implicit. provision in the Constitution.

It is explicit.

The expression‘members of the armed forces’ also covers such

employees of the armed forces as barbers, carpenters, mechanics,

cooks, chowkidars, bootmakers, tailors who are non-combatants.

A parliamentary law enacted under Article 33 can also exclude the

court martial (tribunals established under the military law) from the writ

MARTIAL LAW AND FUNDAMENTAL RIGHTS

Article 34 provides for the restrictions on fundamental rights while

martial law is in force in any area within the territory of India. It

empowers the Parliament to indemnify any government servant or any

other person for any act done by him in connection with the

maintenance or restoration of order in any area where martial law was

in force. The Parliament can also validate any sentence passed,

punishment inflicted, forfeiture ordered or other act done under martial

law in such area.

The Act of Indemnity made by the Parliament cannot be challenged

in any court on the ground of contravention of any of the fundamental

rights.

The concept of martial law has been borrowed in India from the

English common law. However, the expression ‘martial law’ has not

been defined anywhere in the Constitution. Literally, it means ‘military

rule’. It refers to a situation where civil administration is run by the

military authorities according to their own rules and regulations framed

outside the ordinary law. It thus imply the suspension of ordinary law

and the government by military tribunals. It is different from the military

law that is applicable to the armed forces.

There is also no specific or express provision in the Constitution

that authorises the executive to declare martial law. However, it is

implicit in Article 34 under which martial law can be declared in any

area within the territory of India. The martial law is imposed under the

extraordinary circumstances like war, invasion, insurrection, rebellion,

riot or any violent resistance to law. Its justification is to repel force by

force for maintaining or restoring order in the society.

During the operation of martial law, the military authorities are

vested with abnormal powers to take all necessary steps. They

impose restrictions and regulations on the rights of the civilians, can

punish the civilians and even condemn them to death.

The Supreme Court held that the declaration of martial law does

not ipso facto result in the suspension of the writ of habeas corpus.

The declaration of a martial law under Article 34 is different from

the declaration of a national emergency under Article 352. The

differences between the two are summarised in Table 7.3.

EFFECTING CERTAIN FUNDAMENTAL RIGHTS

Article 35 lays down that the power to make laws, to give effect to

certain specified fundamental rights shall vest only in the Parliament

and not in the state legislatures. This provision ensures that there is

uniformity throughout India with regard to the nature of those

fundamental rights and punishment for their infringement. In this

direction, Article 35 contains the following provisions:

1. The Parliament shall have (and the legislature of a state shall not

have) power to make laws with respect to the following matters:

(a) Prescribing residence as a condition for certain employments or

appointments in a state or union territory or local authority or

other authority (Article 16).

(b) Empowering courts other than the Supreme Court and the high

courts to issue directions, orders and writs of all kinds for the

enforcement of fundamental rights (Article 32).

(c) Restricting or abrogating the application of Fundamental Rights

to members of armed forces, police forces, etc. (Article 33).

(d) Indemnifying any government servant or any other person for

any act done during the operation of martial law in any area

(Article 34).

2. Parliament shall have (and the legislature of a state shall not have)

powers to make laws for prescribing punishment for those acts that

are declared to be offences under the fundamental rights. These

include the following:

(a) Untouchability (Article 17).

(b) Traffic in human beings and forced labour (Article 23).

Further, the Parliament shall, after the commencement of the

Constitution, make laws for prescribing punishment for the above acts,

thus making it obligatory on the part of the Parliament to enact such

laws.

3. Any law in force at the commencement of the Constitution with

respect to any of the matters specified above is to continue in force

until altered or repealed or amended by the Parliament.

It should be noted that Article 35 extends the competence of the

Parliament to make a law on the matters specified above, even though

some of those matters may fall within the sphere of the state

PRESENT POSITION OF RIGHT TO PROPERTY

Originally, the right to property was one of the seven fundamental

rights under Part III of the Constitution. It was dealt by Article 19(1) (f)

and Article 31. Article 19(1)(f) guaranteed to every citizen the right to

acquire, hold and dispose of property. Article 31, on the other hand,

guaranteed to every person, whether citizen or non-citizen, right

against deprivation of his property. It provided that no person shall be

deprived of his property except by authority of law. It empowered the

State to acquire or requisition the property of a person on two

conditions: (a) it should be for public purpose, and ( b) it should

provide for payment of compensation (amount) to the owner.

Since the commencement of the Constitution, the Fundamental

Right to Property has been the most controversial. It has caused

confrontations between the Supreme Court and the Parliament. It has

led to a number of Constitutional amendments, that is, 1st, 4th, 7th,

25th, 39th, 40th and 42nd Amendments. Through these amendments,

Articles 31A, 31B and 31C have been added and modified from time

to time to nullify the effect of Supreme Court judgements and to

protect certain laws from being challenged on the grounds of

contravention of Fundamental Rights. Most of the litigation centred

around the obligation of the state to pay compensation for acquisition

or requisition of private property.

Therefore, the 44th Amendment Act of 1978 abolished the right to

property as a Fundamental Right by repealing Article 19(1) (f) and

Article 31 from Part III. Instead, the Act inserted a new Article 300A in

Part XII under the heading ‘Right to Property’. It provides that no

person shall be deprived of his property except by authority of law.

Thus, the right to property still remains a legal right or a constitutional

right, though no longer a fundamental right. It is not a part of the basic

structure of the Constitution.

The right to property as a legal right (as distinct from the

Fundamental Rights) has the following implications:

(a) It can be regulated ie, curtailed, abridged or modified without

constitutional amend-ment by an ordinary law of the Parliament.

(b) It protects private property against executive action but not

against legislative action.

remedies including writs) for its enforcement. He can move the

High Court under Article 226.

(d) No guaranteed right to compensation in case of acquisition or

requisition of the private property by the state.

Though the Fundamental Right to Property under Part III has been

abolished, the Part III still carries two provisions which provide for the

guaranteed right to compensation in case of acquisition or requisition

of the private property by the state. These two cases where

compensation has to be paid are:

(a) When the State acquires the property of a minority educational

institution (Article 30); and

(b) When the State acquires the land held by a person under his

personal cultivation and the land is within the statutory ceiling

limits (Article 31 A).

The first provision was added by the 44th Amendment Act (1978),

while the second provision was added by the 17th Amendment Act

(1964).

Further, Articles 31A, 31B and 31C have been retained as

EXCEPTIONS TO FUNDAMENTAL RIGHTS

1. Saving of Laws Providing for Acquisition of Estates,

etc.

Article 31A16 saves five categories of laws from being challenged and

invalidated on the ground of contravention of the fundamental rights

conferred by Article 14 (equality before law and equal protection of

laws) and Article 19 (protection of six rights in respect of speech,

assembly, movement, etc.). They are related to agricultural land

reforms, industry and commerce and include the following:

(a) Acquisition of estates17 and related rights by the State;

(b) Taking over the management of properties by the State;

(c) Amalgamation of corporations;

(d) Extinguishment or modification of rights of directors or

shareholders of corporations; and

(e) Extinguishment or modification of mining leases.

Article 31A does not immunise a state law from judicial review

unless it has been reserved for the president’s consideration and has

received his assent.

This Article also provides for the payment of compensation at

market value when the state acquires the land held by a person under

his personal cultivation and the land is within the statutory ceiling limit.

2. Validation of Certain Acts and Regulations

Article 31B saves the acts and regulations included in the Ninth

Schedule18 from being challenged and invalidated on the ground of

contravention of any of the fundamental rights. Thus, the scope of

Article 31B is wider than Article 31A. Article 31B immunises any law

included in the Ninth Schedule from all the fundamental rights whether

or not the law falls under any of the five categories specified in Article

31A.

However, in a significant judgement delivered in I.R. Coelho

case18a (2007), the Supreme Court ruled that there could not be any

blanket immunity from judicial review of laws included in the Ninth

Schedule. The court held that judicial review is a ‘basic feature’ of the

after April 24, 1973, are open to challenge in court if they violated

fundamentals rights guaranteed under Articles 14, 15, 19 and 21 or

the ‘basic structure’ of the constitution. It was on April 24, 1973, that

the Supreme Court first propounded the doctrine of ‘basic structure’ or

‘basic features’ of the constitution in its landmark verdict in the

Kesavananda Bharati Case.19

Originally (in 1951), the Ninth Schedule contained only 13 acts and

regulations but at present (in 2016) their number is 282.20 Of these,

the acts and regulations of the state legislature deal with land reforms

and abolition of the zamindari system and that of the Parliament deal

with other matters.

3. Saving of Laws Giving Effect to Certain Directive

Principles

Article 31C, as inserted by the 25th Amendment Act of 1971,

contained the following two provisions:

(a) No law that seeks to implement the socialistic directive principles

specified in Article 39(b)21 or (c)22 shall be void on the ground of

contravention of the fundamental rights conferred by Article 14

(equality before law and equal protection of laws) or Article 19

(protection of six rights in respect of speech, assembly,

movement, etc.)

(b) No law containing a declaration that it is for giving effect to such

policy shall be questioned in any court on the ground that it does

not give effect to such a policy.

In the Kesavananda Bharati case23 (1973), the Supreme Court

declared the above second provision of Article 31C as unconstitutional

and invalid on the ground that judicial review is a basic feature of the

Constitution and hence, cannot be taken away. However, the above

first provision of Article 31C was held to be constitutional and valid.

The 42nd Amendment Act (1976) extended the scope of the above

first provision of Article 31C by including within its protection any law

to implement any of the directive principles specified in Part IV of the

Constitution and not merely in Article 39 (b) or (c). However, this

CRITICISM OF FUNDAMENTAL RIGHTS

The Fundamental Rights enshrined in Part III of the Constitution have

met with a wide and varied criticism. The arguments of the critics are:

1. Excessive Limitations

They are subjected to innumerable exceptions, restrictions,

qualifications and explanations. Hence, the critics remarked that the

Constitution grants Fundamental Rights with one hand and takes them

away with the other. Jaspat Roy Kapoor went to the extent of saying

that the chapter dealing with the fundamental rights should be

renamed as ‘Limitaions on Fundamental Rights’ or ‘Fundamental

Rights and Limitations Thereon’.

2. No Social and Economic Rights

The list is not comprehensive as it mainly consists of political rights. It

makes no provision for important social and economic rights like right

to social security, right to work, right to employment, right to rest and

leisure and so on. These rights are made available to the citizens of

advanced democratic countries. Also, the socialistic constitutions of

erstwhile USSR or China provided for such rights.

3. No Clarity

They are stated in a vague, indefinite and ambiguous manner. The

various phrases and words used in the chapter like ‘public order’,

‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not

clearly defined. The language used to describe them is very

complicated and beyond the comprehension of the common man. It is

alleged that the Constitution was made by the lawyers for the lawyers.

Sir Ivor Jennings called the Constitution of India a ‘paradise for

lawyers’.

4. No Permanency

They are not sacrosanct or immutable as the Parliament can curtail or

abolish them, as for example, the abolition of the fundamental right to

innovated ‘doctrine of basic structure’ is the only limitation on the

authority of Parliament to curtail or abolish the fundamental right.

5. Suspension During Emergency

The suspension of their enforcement during the operation of National

Emergency (except Articles 20 and 21) is another blot on the efficacy

of these rights. This provision cuts at the roots of democratic system in

the country by placing the rights of the millions of innocent people in

continuous jeopardy. According to the critics, the Fundamental Rights

should be enjoyable in all situations–Emergency or no Emergency.

6. Expensive Remedy

The judiciary has been made responsible for defending and protecting

these rights against the interference of the legislatures and

executives. However, the judicial process is too expensive and hinders

the common man from getting his rights enforced through the courts.

Hence, the critics say that the rights benefit mainly the rich section of

the Indian Society.

7. Preventive Detention

The critics assert that the provision for preventive detention (Article

22) takes away the spirit and substance of the chapter on fundamental

rights. It confers arbitrary powers on the State and negates individual

liberty. It justifies the criticism that the Constitution of India deals more

with the rights of the State against the individual than with the rights of

the individual against the State. Notably, no democratic country in the

world has made preventive detention as an integral part of their

Constitutions as has been made in India.

8. No Consistent Philosophy

According to some critics, the chapter on fundamental rights is not the

product of any philosophical principle. Sir Ivor Jennings expressed this

view when he said that the Fundamental Rights proclaimed by the

Indian Constitution are based on no consistent phi-losophy.25 The

SIGNIFICANCE OF FUNDAMENTAL RIGHTS

In spite of the above criticism and shortcomings, the Fundamental

Rights are significant in the following respects:

1. They constitute the bedrock of democratic system in the country.

2. They provide necessary conditions for the material and moral

protection of man.

3. They serve as a formidable bulwark of individual liberty.

4. They facilitate the establishment of rule of law in the country.

5. They protect the interests of minorities and weaker sections of

society.

6. They strengthen the secular fabric of the Indian State.

7. They check the absoluteness of the authority of the government.

8. They lay down the foundation stone of social equality and social

justice.

9. They ensure the dignity and respect of individuals.

RIGHTS OUTSIDE PART III

Besides the Fundamental Rights included in Part III, there are certain

other rights contained in other parts of the Constitution. These rights

are known as constitutional rights or legal rights or non-fundamental

rights. They are:

1. No tax shall be levied or collected except by authority of law

(Article 265 in Part XII).

2. No person shall be deprived of his property save by authority of

law (Article 300-A in Part XII).

3. Trade, commerce and intercourse throughout the territory of

India shall be free (Article 301 in Part XIII).

Even though the above rights are also equally justiciable, they are

different from the Fundamental Rights. In case of violation of a

Fundamental Right, the aggrieved person can directly move the

Supreme Court for its enforcement under Article 32, which is in itself a

fundamental right. But, in case of violation of the above rights, the

aggrieved person cannot avail this constitutional remedy. He can

move the High Court by an ordinary suit or under Article 226 (writ

jurisdiction of high court).

Table 7.4 Articles Related to Fundamental Rights at a Glance

Article No. Subject Matter