guys, plz say two limitation of the fundamental rights
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Answer:
Explanation:
Unlike in west, in India fundamental rights are legal rights and not natural rights (in west concept of fundamental rights has religious origins). In india, fundamental rights are special legal rights provided in constitution itself and remedies for them also a fundamental right, people can directly approach high courts and Supreme Court.
Fundamental rights in india have two kind of limitations. One is inbuilt limitations. Every fundamental right in india has a “but government can” clause in end, that means government can violate them for affirmative action. Before 1974, keshave nanda bharti case, government could take away fundamental rights by constitutional amendment, as it is a legal right. But since then basic structure of constitution doctrine has been invented by supreme court. This is not a legislation as court doesn’t have power but a tool for interpretation. It takes into account substantive nature of fundamental rights. So somewhat limitation has been cured.
2. Post modernist thought is in built in constitution, which sees people not as individuals but also as groups. So affirmative action is based on group identities, rather than the type of deprivation, which shall include all people who have that particular deprivation. This has to a divisive feudal political culture in india.
freedoms given in article 19 can be taken away for public order, morality etc, which is very vague criterion, if u see closely an u just criterion. Now it has two aspects one is security, other is censor. Taking freedom away on pretext of security (genuine or made up) is feature of all systems in all countries. In UK it is called bureaucratic tyranny. Some system allow it for more shoddy reasons, comfort of administrators, lack of resources (often intentional). What is moral ? Or what offends public morality is more vague thing. It becomes more vague if police forces ar not trained well. In my personal opinion there should be one limitation that is privacy of individual (guaranteed by article 21). And security to legible extent.
coming to article 21, life and liberty also there are many limitations. Main limitation is that when life and liberty is taken by our collective crimes, pollution, ecological damage, death penalty, increasing punishments rather than increasing resources (creating deterrence) or as foucault say it, threatening others by harshy punishing one. This is the most prominent lively feature of india criminal law making. Something u see after every public furore over lack of governability. Its scope is very wide.
article 22, pre detention is also very problematic. Limiation is of course not following “innocent untill proven guilty”. There are laws who directly challenge it, like public security act (psa) in JnK, which is regularly mis used for political reasons. Judges are also reluctant to give bails to undertrials, jails are filled with undertrials who can’t pay bail money. Reports mark the no. At 60% of all jail inmates. This is gross unjustice, that a man has to spend years in jails without being proven guilty.
there are limitation to freedom of religion clauses, under this court has permitted personal laws many injustices which are not compatible with fundamental rights. Personal laws should be liberalized. It hasn’t been done. This means state has not fulfilled its duties under this article which permit limitation on religion. We also saw how “hadiya case” was badly handled by supreme court.
some bad culture has also been developed because of institutions being given minority status. The whole procedure seems out of linc from spirit of these laws.
now we come to right to constitutional remedies. As You must be aware of helath of our judiciary, its lack of resources, burden on supreme court of all other kind of jurisdiction, generally people do not get these remedies. It makes all fr’s useless.
article 31 is more of limitation, less of right. So are others that follow article 33,34 and 35. They concern rights to property, shielding laws from being adjudicated by courts (schedule 9), laws when martial law is applied, their indemnification for wrong actions taken by officials, nationalization of any property. All of these are misused more often than not.