Assessment Of Fundamental Rights In India
The Chapter on Fundamental Rights in the Constitution has been the subject of criticism both in India and outside, ever since its adoption. Broadly classified, the critics are of three types. First, there are those who think that the Constitution does not embody fundamental rights in reality, but only an apology for them. According to them, many fundamental rights such as the right to work, education, etc, which ought to have found a place in the chapter have been ignored.
Secondly, there are those who think that the spirit of the whole chapter and much of its substance are taken away by extraordinary provisions such as preventive detention, suspension of the right to constitutional remedies, etc. These critics allege that what has been given by one hand has been taken away by the other.
Thirdly, there are those who argue that even those rights that are attempted to be safeguarded are hedged in with so many exceptions, explanations and qualifications that it is difficult to understand as to what exactly is available to the individual by way of fundamental rights.
The difference between Fundamental Rights and Directive Principles is that the Fortner are justiciable rights – rights that can be enforced by a court of law – while the latter are nonjusticiable. However, it does not make them useless or meaningless as has been alleged by some critics. The distinction can be understood only in the light of the evolution of theory and practice relating to Fundamental Rights in the nineteenth and twentieth centuries,
The right to employment or education is not a right that courts of law can safeguard. When they start safeguarding such rights they will cease to be court. These are rights, which ought to come within the scope of legislative policy. They are not appropriate for judicial action. The remedy for them lies in the legislature, which is elected on the basis of adult franchise. In a democracy based upon adult suffrage, legislatures are bound to take action and sec that such rights remain not mere platitudes on paper but as effective as justiciable rights.
The provisions dealing with preventive detention, Terrorist and Disruptive Activities (TADA) and the suspension of constitutional remedies are not easy to defend. Nevertheless, there are considerations, which can be urged in their favour. It has been already pointed out that the restrictions on individual freedom are necessary in the interest of society. The fathers of the Constitution were aware of the dangers to the existence and safety of the Republic that they were establishing. They were giving it shape at a time when the country was passing through great stress and strain. There were groups and parties who made no secret of their opposition to the democratic process and proclaimed their faith in violent action to achieve their declared aims.
During the third decade, however, as a result of the declaration of internal emergency in 1975, a large number of persons were taken into custody. While this was assailed by the opposition as politically motivated, the spokesmen of the Government justified it to protect the country from chaos and anarchy which were to result from the unconstitutional and violent activities of a number of political parties and groups. Fortunately, the situation did not last long. With the announcement of parliamentary elections in January 1977 the Central Government issued instructions to all the States to release political prisoners held under the Maintenance of Internal Security Act and allow all forms of political activity normally undertaken, especially during election time. In 1978 the Maintenance of Internal Security Act was abolished. However, in 1981 the National Security Act was passed more or less on similar terms.
As to the question of suspension of constitutional remedies, so far there has been no occasion for it in spite of declaration of national emergency on four occasions, in 1962, 1965, 1971 and 1975. The operation of several other Fundamental Rights, however, was seriously affected by the Proclamation of Emergency by the President in 1962 and later in 1965, 1971 and 1975. The Proclamation was followed by the Defence of India Act, investing the Government with vast powers over the liberty of the citizen.
In fact. Article 358 of the Constitution provides for the automatic suspension of the six freedoms such as the right to freedom of speech, assembly, association, movement, etc. embodied in Article 19 of the Constitution on a Proclamation of national emergency (According to the 44th Amendment Act of 1978 the six Fundamental Rights under Article 19 can be suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion).
Since there is no provision for the automatic suspension of any other fundamental rights, orders were issued soon after the proclamation suspending the enforcement of Article 14 (equality before the law), Article 21(right to life and personal liberty) and Article 22 (Protection against unlawful arrest and detention) insofar only as they might affect the constitutionality of the Defence of India Act, the rules made under it and also any order made in pursuance of them. { After the 44th Amendment Act of 1978 the right protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21 ) remain enforceable even during emergency } It is generally true that, in the ultimate analysis, Fundamental Rights are not protected by courts of law but by public opinion. But the effectiveness of public opinion as the guardian of fundamental rights depends upon how well organised and effective is public opinion in a country. India is a vast country in size and has a huge population. It is also a poor and backward country.
Education and civic consciousness are yet to reach a commendable level in India. The Court’s decisions as the guardian of these rights have had, indeed, a salutary influence both on the executive and the legislature against whom those rights have been primarily guaranteed. The Court has been prompt and forthright in curbing legislative exuberance by declaring those enactments of Parliament and the State legislatures invalid whenever it found them transgressing the defined limits within which they are permitted to impose reasonable limitations on the freedom of the individual. Despite the fact that some of the rights have been substantially modified in scope as a result of constitutional amendments, the chapter on Fundamental Rights is a bulwark of individual liberty, a code of public conduct and a strong and sustaining basis of India – democracy.