The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property.
Criticism of Fundamental Rights
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 the 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 what exactly is available to the individual by way of fundamental rights.
One of these critics sarcastically suggested that the chapter on Fundamental Rights should be renamed as "Limitations on Fundamental Rights, or Fundamental Rights and Limitations thereon".
It is true that the right to work, the right to rest and leisure, material security, etc., is not included in the chapter on Fundamental Rights. The reason why they have not been included is not far to seek. Every one of the rights in this chapter is a justiciable right.
For every violation of these rights, there is a judicial remedy, which makes the right a practical proposition. On the other hand, take, for example, the right to education: "Every child under the age of fourteen shall have the right to free education", is a positive right. To translate it into reality, the State must provide immediately thousands of schools all over the country.
Was it possible under the conditions prevailing in India at the time of the adoption of the Constitution to have this right realised in practice? Needless to say, it was impossible. It is a right which can be made available to everyone only in the course of decades.
This is why the right to education has been included in the chapter on Directive Principles of State Policy and a time limit of ten years was fixed. However, the Eighty-sixth Amendment of the Constitution in 2002 has made primary education a Fundamental Right.
The difference between Fundamental Rights and Directive Principles is that the former are justiciable rights that can be enforced by a court of law while the latter are nonjusticiable rights. The fact that certain rights have been made non-justiciable does not make them useless or meaningless as has been alleged by some critics.
Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. Parliament may, by law, determine to what extent any of the rights conferred bythis Part shall, in their application to,-
(a) The members of the Armed Forces or
(b) The members of the Forces charged with the maintenance of public order or
(c) Persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence or
(d) Persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Restriction on rights conferred by this part while martial law is in force in any area
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
Position of Fundamental Rights during Emergency
Emergency provision falls in Part-XVIII of the constitution of India from Art.352 to Art. 360.
1. National emergency (Article 352 of the constitution of India)
2. State emergency (Article 356 of the constitution of India)
3. Financial emergency (Article 360 of the constitution of India)
National Emergency
Art. 352 reads that-
Proclamation of Emergency - If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
Explanation- A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
Effects of National Emergency
The declaration of National Emergency has effects both on the rights of individuals and the autonomy of the states in the following manner:
The most significant effect is that the federal form of the Constitution changes into unitary. The authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List.
The President of India can issue directions to the states as to the manner in which the executive power of the states is to be exercised.
During period, the Lok Sabha can extend tenure by a period of 1 year at a time. But the same can’t be extended beyond 6 months after the proclamation ceases to operate. The tenure of State Assemblies can also be extended in the same manner.
During emergency, the President is empowered to modify the provisions regarding distribution of revenues between the Union and the States.
The Fundamental Rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency.
But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in case of proclamation on the ground of war or external aggression. From the above discussion, it becomes quite clear that emergency not only suspends the autonomy of the States but also converts the federal structure of India into a unitary one. Still it is considered necessary as it equips the Union Government with vast powers to cope up with the abnormal situations.
Suspension of Fundamental Rights
During the period of emergency, as declared under the either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the emergency. However, such orders are to be placed before Parliament as soon as possible for its approval.
But Art. 20 and Art.21 cannot be suspended in any case.
Suspension of fundamental rights during emergency is a matter of debate and conflicts of opinion it would be a mistake to treat human rights as though there were a tradeoff to be made between human rights and goals such a security and development. Strategies based on the protection of human rights are vital both for our moral standing and the practical effectiveness of our actions. - Kofi Annan
Fundamental rights are moral rights which have been made legal by the Constitution. These constitutional rights which are ‘fundamental’ in character represent rights in the ‘strong sense’. They are distinct from ordinary legal and constitutional rights because they may not be restricted on ground of general utility.
The very essence of these rights is that they are guaranteed even if the majority would be worse off in doing so, that fundamental rights are necessary to protect the dignity of an individual. Invasion of these rights is a very serious matter and it means treating a man as less than a man. This is grave injustice and it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it.
Fundamental rights are not absolute in nature. The government may impose restrictions on three grounds.
The government might show that the values protected by the original right are not really at stake in the marginal case or at stake only in some attenuated form.
Alternatively if it may show that if the right is defined to include the marginal case, then some competing right, in the strong sense, would be abridged. This is the principle of competing rights of other members of society as individuals. Making this ‘rights’ choice and protecting the more important at the cost of the less important, does not weaken the notion of rights. Hence the government may limit rights if it believes that a competing right is more important.
The third possibility is if it may show that if the right were so defined then the cost to society would not be simply incremental but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity of the individual it may result in.
But another principle is there which is used in many human rights treaties and in national constitutions as well. Government may not arbitrarily deprive persons of their fundamental rights, most of debates on the issue assume a necessary ‘trade off’ between rights and security, however it is submitted that the relation between the two is more complex than that.
Restrictions on rights on ground of security are not justified per se. This may be because the trade off is unnecessary where the government may pass effective laws which do not violate rights or when harsh laws restricting rights will not yield results. However tensions do arise. If the security strategy genuinely implicates rights, then it may be justified and must be governed by the principle of proportionality. Proportionality analysis is an uphill task and involves balancing of the two social goods of liberty and security.
It involves analysing if there exists a rational connection between the aims of the legislation and the means employed, if there is a less restrictive means available in order to achieve the aim. Thirdly, comparing the effectiveness of the means with the infringement of rights.
Role of 42nd & 44th Amendment
42nd amendment
The Forty-second Amendment Act of 1976 (officially the "Constitution (Forty-second Amendment) Act, 1976") was an amendment to the Constitution of India that reduced the ability of the India's Supreme and High Courts to proclaim laws constitutional or unconstitutional. Passed by the Indian parliament on 2 November 1976, it also made India a socialist secular republic and laid down the duties of Indian citizens to their government. It was passed by the parliament during the Indian Emergency (1975 - 77) brought by the Congress government headed by Indira Gandhi.
