What constitution gives with one hand, it takes away with other. Critically discuss with reference to fundamental rights in Indian Constitution.

This argument is based on the premise that every fundamental right has so many exceptions, provisions, qualifications and explanation in such a way that they are rendered to exist only in name.
This criticism is more focussed on the below:

  • The right to equality comes with exceptions, which are though positive discriminations but actually results in inequality in haves and have-nots of reservation.
  • Though Fundamental rights are available against the arbitrary action of the state but it has an exception that when the rights that are available against the State’s action only are violated by the private individuals, there are no constitutional remedies but only legal remedies.
  • Fundamental Rights can be suspended during the operation of National Emergency. Right to Freedom of speech and expression which is not only Fundamental right but also human right, is also suspended.
  • The Parliament has tempered with the fundamental rights, for example reducing right to property (article 31) to a legal right.
  • The provisions regarding preventive detention make right to freedom hollow.

There is also a view that the Constitution-makers also failed to incorporate certain rights such as the right to work and employment, though it is debatable whether these could have been sustained in the conditions of scarcity found in a country like India. Moreover, it is felt that the legal terminology surrounding their provision in the Constitution is extremely difficult for the common man to follow.
Though the restrictions of fundamental rights are sometimes difficult to defend, it must be remembered that our democracy has never been able to free itself of certain major stresses and strains. And, when the defence and security of the nation are of utmost Significance, these limitations have to be taken in our stride. Nevertheless, much depends on the citizens’ consciousness to keep the rights alive. Only that would be a true mark of authentic democracy.

Question for UPSC Mains:
What constitution gives with one hand, it takes away with other. Critically discuss with reference to fundamental rights in Indian Constitution.

Published: September 24, 2017 | Modified:June 27, 2019

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