The concept of Fundamental Rights forms the bedrock of modern democratic constitutions, ostensibly serving as an inviolable bulwark against state overreach and a guarantor of individual liberty. These rights are often presented as sacrosanct, inherent entitlements without which the dignity and autonomy of individuals cannot be fully realized. In the Indian context, enshrined in Part III of the Constitution from Articles 12 to 35, they represent a charter of liberties providing essential protections for citizens against the state and, in some cases, against other individuals. They are distinguished from ordinary legal rights by their constitutional status, guaranteeing their enforceability through the Supreme Court and High Courts.

However, a critical perspective emerges, encapsulated in the provocative statement: “Fundamental Rights are neither fundamental nor rights.” This assertion challenges the very essence and efficacy of these constitutional provisions, inviting a deeper examination of their scope, limitations, and practical enforceability. It suggests that despite their exalted position, these rights are subject to such significant qualifications, amendments, and suspensions that their ‘fundamental’ character and status as true ‘rights’ become questionable. To understand the nuances of this statement, it is imperative to delve into the arguments that both support and refute this critical appraisal, exploring the legal, philosophical, and practical dimensions of Fundamental Rights.

The critique that Fundamental Rights are “neither fundamental nor rights” stems from several key arguments centered on their inherent limitations, susceptibility to state action, and the challenges associated with their enforcement. Examining these points provides a comprehensive understanding of the statement’s validity.

The Argument: “Neither Fundamental”

The assertion that Fundamental Rights are “neither fundamental” challenges their perceived immutability, inalienability, and intrinsic nature. This perspective highlights several aspects that detract from an ideal notion of ‘fundamental’:

1. Amendability of Fundamental Rights: A primary argument against their ‘fundamental’ character is their amendability. Unlike the concept of natural rights, which are believed to be inherent and pre-political, constitutional Fundamental Rights are products of positive law. In India, Article 368 of the Indian Constitution grants Parliament the power to amend any provision of the Constitution, including Part III. While the landmark Kesavananda Bharati v. State of Kerala (1973) judgment introduced the ‘Basic Structure Doctrine,’ holding that Parliament cannot alter the ‘basic structure’ or essential features of the Constitution, this doctrine does not render Fundamental Rights entirely unamendable. It merely prevents amendments that would destroy or abrogate the core principles underlying them. For instance, the Right to Property, initially a Fundamental Right under Article 19(1)(f) and 31, was removed from Part III by the 44th Amendment Act, 1978, and relegated to a mere legal right under Article 300A. This demonstrates that even a right initially deemed ‘fundamental’ could be significantly altered or removed from that category by parliamentary action, albeit with judicial scrutiny. Such instances highlight that these rights are not immutable or inherent in the sense that they cannot be touched or modified by the state’s legislative power. They are, thus, fundamentally different from the philosophical concept of inherent, inalienable rights that exist irrespective of state recognition.

2. Suspensibility During Emergencies: Perhaps the most potent challenge to the ‘fundamental’ nature of these rights is their susceptibility to suspension during periods of national emergency. Articles 358 and 359 of the Indian Constitution provide for such suspension. Under Article 358, the rights guaranteed by Article 19 (freedoms of speech, assembly, association, movement, residence, and profession) are automatically suspended upon a Proclamation of Emergency due to war or external aggression. Furthermore, under Article 359, the President can, by order, suspend the right to move any court for the enforcement of any or all other Fundamental Rights, including the right to life and personal liberty (Article 21), with the exception of Article 20 (protection in respect of conviction for offences). The infamous ADM Jabalpur v. Shiv Kant Shukla (1976) case, also known as the Habeas Corpus case during the Emergency, illustrated the extreme consequence of this suspension. The Supreme Court, by a majority, held that during an emergency, even the right to life and personal liberty could not be enforced, effectively meaning that individuals could be detained without recourse to the courts. While this judgment has since been widely criticized and effectively overruled by the 44th Amendment (which mandated that Articles 20 and 21 cannot be suspended), the fact that such a suspension is constitutionally permissible in the first place underscores that these rights are not absolute or eternally guaranteed in all circumstances. Their conditional existence under emergency provisions makes them contingent rather than truly fundamental in an unqualified sense.

3. Subject to Reasonable Restrictions: Most Fundamental Rights are not absolute but are subject to “reasonable restrictions.” For example, Article 19, which guarantees six freedoms, explicitly lists the grounds on which these freedoms can be restricted. These include public order, morality, national security, sovereignty and integrity of India, friendly relations with foreign states, contempt of court, defamation, incitement to an offence, and professional qualifications. The “reasonableness” of these restrictions is subject to judicial review, but the very existence of such pervasive limitations means that the exercise of these rights is always conditional and contingent upon the broader interests of the state and society. This inherent limitation distinguishes them from the idea of absolute rights. If a right can be curtailed for a multitude of reasons, its foundational character is diminished. The state, under the guise of public interest, can legitimately impose significant curbs on freedoms, thereby demonstrating that these rights are not inherent and inviolable entitlements but rather privileges granted and regulated by the state within specified parameters.

4. Not Derived from Natural Law: Philosophically, ‘fundamental’ rights are often associated with natural rights, which are believed to pre-exist the state and positive law, being inherent to human existence. However, constitutional Fundamental Rights, particularly in the Indian context, are products of the Constitution-making process. They are conferred by the state through a constitutive act rather than being merely recognized as pre-existing entitlements. This distinction is crucial: if rights are granted by the state, they can logically be modified, limited, or even taken away by the same authority, subject to constitutional procedures. This stands in contrast to the idea of rights that are independent of state recognition, such as those postulated by Locke or Rousseau. The fact that their existence and scope depend on constitutional enactment rather than inherent human nature detracts from their ‘fundamental’ philosophical status.

The Argument: “Nor Rights”

The second part of the critique, “nor rights,” targets the practical enforceability and scope of these constitutional guarantees, suggesting that they do not always translate into effective entitlements for all citizens.

1. Challenges in Enforcement and Access to Justice: While Fundamental Rights are justiciable (enforceable by courts) under Articles 32 and 226, the practical reality of enforcing them can be challenging.

  • Cost and Delays: Accessing justice, particularly in higher courts, can be expensive and time-consuming. The Indian judicial system is plagued by massive backlogs, leading to significant delays in the resolution of cases. Justice delayed is often justice denied, especially for the poor and marginalized who may lack the resources to pursue prolonged litigation.
  • State Capacity and Bureaucratic Hurdles: Even with favorable court pronouncements, effective implementation of rights can be hampered by state capacity issues, bureaucratic inertia, or lack of political will. For instance, while the Right to Education (Article 21A) is a Fundamental Right, ensuring quality education for all children nationwide requires enormous state investment and effective administrative machinery, which may not always be sufficient.
  • Lack of Awareness: A significant portion of the population, especially in rural and remote areas, remains unaware of their Fundamental Rights or the mechanisms available for their enforcement. This lack of legal literacy effectively renders the rights non-existent for those who cannot assert them.

2. Predominantly Negative Rights: Most Fundamental Rights in India are framed as “negative rights,” meaning they primarily impose restrictions or prohibitions on the state. For example, Article 14 (equality before law) prevents the state from discriminating, and Article 21 (protection of life and personal liberty) prevents arbitrary deprivation of life or liberty. They do not, for the most part, impose positive obligations on the state to provide specific goods or services (like housing, employment, healthcare) in the way that socio-economic rights do. While judicial activism has expanded the scope of Article 21 to include a right to live with dignity, which implicitly encompasses certain positive entitlements, the primary character remains negative. In contrast, “positive rights” would mandate the state to take proactive measures to ensure a certain standard of living or access to resources. If rights are largely negative, they only protect individuals from state interference but do not guarantee the conditions necessary for a dignified existence, particularly for the poor and vulnerable. This can lead to a situation where individuals have theoretical freedoms but lack the substantive capabilities to exercise them due to socio-economic constraints.

3. Balancing with Directive Principles of State Policy (DPSP): Part IV of the Constitution contains Directive Principles of State Policy, which are non-justiciable guidelines for the state. While Fundamental Rights are enforceable, and DPSPs are not, the judiciary has often sought to balance the two. In several instances, the implementation of DPSPs (e.g., land reforms, nationalization) has led to restrictions on Fundamental Rights, particularly the Right to Property before its removal from Part III. Even post-Kesavananda, the courts have sometimes balanced individual rights against collective good or state policy objectives. This balancing act suggests that Fundamental Rights are not absolute entitlements that override all other state objectives but are part of a broader constitutional scheme where different values may compete, potentially leading to their curtailment in specific contexts.

4. Internal Conflicts and Abuses: Fundamental Rights can sometimes conflict with each other (e.g., freedom of speech vs. right to reputation or religious freedom). The judiciary then steps in to resolve these conflicts, often by curtailing one right in favor of another, demonstrating that none are absolutely supreme. Moreover, the exercise of rights can sometimes be seen as an abuse. While the concept of ‘abuse of rights’ is not explicitly defined, the legal system can impose restrictions to prevent rights from being used to harm others or undermine public order. This inherent tension and the possibility of legitimate curtailment based on competing rights or public interest can be seen as eroding their status as unqualified ‘rights.’

Rebuttal: Why they Are Fundamental and Rights

Despite the compelling arguments presented by the critical perspective, it is equally crucial to acknowledge the profound significance and enduring power of Fundamental Rights. They are indeed ‘fundamental’ and ‘rights’ in several crucial senses:

1. Constitutional Supremacy and Justiciability: Fundamental Rights are enshrined in the highest law of the land – the Constitution – making them superior to ordinary laws. Any law inconsistent with or in derogation of Fundamental Rights is void to the extent of such inconsistency (Article 13). More importantly, they are directly justiciable, meaning citizens can directly approach the Supreme Court (Article 32) or High Courts (Article 226) for their enforcement. This unique feature sets them apart from other constitutional provisions (like DPSPs) and underscores their ‘right’ status. The constitutional guarantee of remedies makes them real entitlements rather than mere aspirational goals.

2. Basic Structure Doctrine as a Shield: The Basic Structure Doctrine, established in Kesavananda Bharati, acts as a powerful, albeit limited, safeguard. It prevents Parliament from amending the Constitution in a way that alters its core identity or essential features, including many Fundamental Rights that are considered integral to the democratic and liberal character of the Indian state. While rights can be amended, their essence cannot be abrogated, providing a degree of ‘fundamental’ protection against arbitrary state action.

3. Cornerstone of Democracy and Rule of Law: Fundamental Rights are indispensable for the functioning of a vibrant democracy and the establishment of the rule of law. They ensure political liberty, equality, and dignity, providing a framework for citizens to participate meaningfully in public life without fear of arbitrary state repression. Without freedom of speech, assembly, and association, a democratic discourse is impossible. They are the bulwark against authoritarianism and ensure that the state remains accountable to the people. This role in upholding the very fabric of governance makes them ‘fundamental’ to the constitutional order.

4. Evolutionary and Expansive Interpretation by Judiciary: The Indian judiciary, through a dynamic and often activist interpretation, has significantly expanded the scope and meaning of Fundamental Rights, particularly Article 21 (Right to Life and Personal Liberty). Rights like the right to clean environment, right to privacy (K.S. Puttaswamy case), right to livelihood, right to health, and right to education have been read into Article 21, demonstrating their living and adaptable nature. This judicial activism has ensured that Fundamental Rights remain relevant in changing social contexts and continue to empower citizens, affirming their status as evolving ‘rights’ that respond to contemporary challenges.

5. Protection Against State Tyranny: Despite their limitations, Fundamental Rights serve as vital checks on the power of the state. They empower individuals to challenge state action that infringes upon their liberties. This protective function against executive and legislative overreach is precisely what makes them ‘fundamental’ to individual freedom and dignity. They embody the principle that there are certain spheres of individual autonomy that the state cannot violate.

6. Alignment with International Human Rights Standards: The Fundamental Rights enshrined in the Indian Constitution largely align with universal human rights principles articulated in international covenants like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). This global recognition underscores their universal significance and inherent value, reinforcing their ‘fundamental’ character as basic human entitlements.

The statement “Fundamental Rights are neither fundamental nor rights” serves as a powerful critique that forces a nuanced understanding of these constitutional provisions. It validly highlights their inherent limitations, susceptibility to amendment and suspension, and the practical challenges associated with their enforcement. From this perspective, Fundamental Rights are not absolute, immutable, or universally enforceable entitlements, but rather products of positive law, subject to societal interests and state power, thereby appearing “neither fundamental nor rights” in an idealized, absolute sense.

However, to embrace this statement entirely would be to overlook the profound and indispensable role Fundamental Rights play in a democratic society. Despite their limitations, they remain ‘fundamental’ because they are constitutionally entrenched, enjoy judicial review over ordinary law, and form the core framework for individual liberty and dignity. Their ability to serve as a check on state power, their justiciability through constitutional remedies, and their continuous expansion through judicial review make them the most vital part of the constitutional scheme.

Therefore, while the statement exposes the practical realities and conceptual limitations of Fundamental Rights, it ultimately serves as a reminder of their conditional nature rather than negating their essence. They are ‘rights’ because they provide legally enforceable entitlements, and they are ‘fundamental’ because they are foundational to the democratic and liberal character of the state, serving as a bulwark against oppression and arbitrary rule. The debate underscores the continuous tension between individual liberty and state power, a tension that defines the ongoing evolution and interpretation of these crucial constitutional guarantees.