The Jurisprudence of Fundamental Rights

Think of a house with a strong outer wall. Inside the house, the family (the legislature) may rearrange the furniture as it likes, by ordinary majority. But certain things are built into the wall itself: they cannot be removed by a simple vote at the dinner table, and if anyone tries, a guard at the gate (the court) will stop them. Fundamental rights are the protections built into that wall. The jurisprudential questions are: where do these rights come from, how strong are they, who may claim them, against whom, and how do we decide when the State may legitimately limit them?

Figure: The four stages of the proportionality test (legitimate aim, suitability, necessity, balancing) through which a law restricting a fundamental right must pass; failure at any stage is fatal

1. The Jurisprudential Foundations

Fundamental rights descend from the natural rights tradition. Locke's rights to life, liberty and property, the American Declaration of Independence (1776) and the French Declaration of the Rights of Man (1789) proclaimed rights that belong to human beings as such, prior to the State. Positivists attacked this idea. Bentham, in Anarchical Fallacies, called natural and imprescriptible rights 'nonsense upon stilts': for him a right can only be the child of law, and there are no rights without a law and a sanction behind them. A written constitution answers Bentham in his own terms: it positivises natural rights, turning them into legal rights enforceable in court.

Hart, in 'Are There Any Natural Rights?' (1955), argued that if there are any moral rights at all, there is at least one natural right: the equal right of all men to be free. Hohfeld's analysis (Note 28) shows that a 'fundamental right' is often not a single claim but a bundle: claim-rights against interference, liberties, and above all immunities, since Part III disables the legislature from abridging the rights (Art. 13(2)). Dworkin (Taking Rights Seriously, 1977) described rights as trumps: a right means that the State may not override the individual merely because doing so would advance the general welfare. The Indian Constitution reflects all three ideas: rights are moral in origin, legal in form and strong enough to defeat ordinary policy.

2. The Structure of Part III

Fundamental rights are enforceable against the State, defined broadly in Art. 12. Art. 13 makes laws inconsistent with Part III void to the extent of the inconsistency, and gives rise to three doctrines. The doctrine of eclipse holds that a pre-constitutional law inconsistent with a fundamental right is not dead but overshadowed, and revives if the right is later amended (Bhikaji Narain Dhakras, 1955). The doctrine of severability strikes down only the offending part of a statute if it can be separated from the rest. The doctrine of waiver is rejected in India (section 4). The leading cases on eclipse and severability are set out in Note 46.

Most rights are negative: they require the State to refrain from interfering. But the Supreme Court has read positive dimensions into several, especially Art. 21, requiring the State to provide legal aid, education, a healthy environment and humane conditions of detention. Most rights apply vertically, against the State. Some apply horizontally by their own terms: Art. 15(2) (access to shops and public places), Art. 17 (abolition of untouchability), Art. 23 (forced labour) and Art. 24 (child labour). In Kaushal Kishor v State of UP (2023) a Constitution Bench held by majority that the rights under Arts. 19 and 21 can also be enforced against persons other than the State.

3. Enforcement and Suspension

A right without a remedy is empty. Art. 32 makes the right to move the Supreme Court for enforcement of fundamental rights itself a fundamental right; Ambedkar called it the very heart and soul of the Constitution. The High Courts have wider writ jurisdiction under Art. 226. Under Art. 359, during a proclamation of emergency the President may suspend the right to move courts for enforcement of specified rights. The Emergency of 1975 to 1977 and ADM Jabalpur (1976) showed the danger. The 44th Amendment (1978) responded by providing that the enforcement of Arts. 20 and 21 can never be suspended.

4. Waiver and Estoppel

5. From Compartments to the Golden Triangle

The most important jurisprudential shift in Indian rights law is the move from a positivist, compartmentalised reading to an integrated, natural-rights-inflected reading.

6. The Jurisprudence of Equality

Art. 14 guarantees equality before the law and the equal protection of the laws. It does not forbid classification; it forbids class legislation. The classical twin test, stated in State of West Bengal v Anwar Ali Sarkar (1952) and summarised in Ram Krishna Dalmia v Justice Tendolkar (1958), requires that a classification be founded on an intelligible differentia that distinguishes those grouped together from those left out, and that the differentia have a rational nexus with the object of the law. In Anwar Ali Sarkar a law allowing the government to send any case to a special court with a truncated procedure, without any guiding principle, was struck down. Dalmia added that a law may even apply to a single person if there are special circumstances justifying it.

The new doctrine of equality treats arbitrariness itself as a denial of equality. In E.P. Royappa v State of Tamil Nadu (1974), Bhagwati J declared that equality is a dynamic concept and that equality and arbitrariness are sworn enemies. For decades there was doubt whether arbitrariness alone could invalidate a statute. In Shayara Bano v Union of India (2017), the opinion of Nariman J, part of the majority striking down instant triple talaq, held that manifest arbitrariness, meaning something done capriciously, irrationally or without adequate determining principle, is a ground for striking down legislation too.

Indian equality is also substantive, not merely formal. In State of Kerala v N.M. Thomas (1976) the Court treated reservation under Art. 16(4) not as an exception to equality but as a facet of it. Indra Sawhney v Union of India (1992), a nine-judge bench, upheld reservation for backward classes, excluded the creamy layer and set a general ceiling of 50 per cent. In Janhit Abhiyan v Union of India (2022) the Court upheld reservation for economically weaker sections by 3:2.

7. Reasonable Restrictions and Proportionality

The freedoms in Art. 19(1) are subject to reasonable restrictions on grounds listed in Arts. 19(2) to (6), such as sovereignty and integrity of India, security of the State, public order, decency or morality, and the interests of the general public. In State of Madras v V.G. Row (1952) the Court said that reasonableness must be judged by the nature of the right, the purpose of the restriction, the extent and urgency of the evil, the disproportion of the imposition and the prevailing conditions. Proportionality was thus present in Indian reasoning from the beginning.

A common error must be avoided: proportionality does not replace reasonable restrictions. The constitutional text still requires that a restriction fall under a permitted ground and be reasonable. Proportionality is the structured method by which courts now decide whether it is reasonable, under Art. 19 and for other rights such as Art. 21. In Modern Dental College and Research Centre v State of MP (2016), a Constitution Bench adopted a four-stage test, drawing on the work of the Israeli jurist Aharon Barak. In K.S. Puttaswamy v Union of India (2017) the nine-judge bench required any invasion of privacy to satisfy legality (a law), a legitimate aim and proportionality.

8. The Expansion of Article 21

After Maneka Gandhi, Art. 21 became the source of a family of unenumerated rights. In Francis Coralie Mullin v Administrator, UT of Delhi (1981) the Court held that the right to life includes the right to live with human dignity and to the bare necessities of life. Olga Tellis (1985) added livelihood. In Mithu v State of Punjab (1983) the Court struck down the mandatory death sentence in formerly Section 303 IPC, holding that a law depriving the court of discretion in sentencing was unfair and unjust. Common Cause v Union of India (2018) recognised the right to die with dignity, permitting passive euthanasia and advance directives. Puttaswamy (2017) recognised privacy, grounded in dignity and autonomy, and described the ADM Jabalpur majority as seriously flawed.

9. Fundamental Rights and Directive Principles

Part IV contains the Directive Principles of State Policy, which are fundamental in governance but not enforceable in court (Art. 37). In State of Madras v Champakam Dorairajan (1951) the Court held that the directives must conform to and run subsidiary to the fundamental rights. The later view is harmony: in Minerva Mills (1980) the Court held that the balance between Parts III and IV is itself part of the basic structure, and the directives are now used to give content to rights, as when the right to education was read into Art. 21 before Art. 21A was added.

10. Constitutional Morality and Transformative Constitutionalism

Two ideas now shape the reading of rights. Constitutional morality requires courts to protect rights according to the Constitution's values of liberty, equality, dignity and fraternity, rather than popular or majoritarian morality. Transformative constitutionalism treats the Constitution as a charter for changing an unequal society. Both were invoked in Navtej Singh Johar (2018) and Joseph Shine (2018). Their origins, content and criticisms are treated in full in Note 46.

11. Evaluation

The Indian jurisprudence of rights has moved from Bentham's positivism (Gopalan, ADM Jabalpur) towards a view in which rights are inherent and the Constitution recognises rather than creates them (Maneka, Puttaswamy). Its achievements are the golden triangle, the arbitrariness doctrine and the structured proportionality test. Its critics warn that expansive Art. 21 rights may be unenforceable promises, that 'arbitrariness' is a vague standard, and that proportionality balancing gives judges wide discretion. The strength of the proportionality method is that it requires the State to justify each step openly.

12. Frequently Asked Questions

Q. Has proportionality replaced the test of reasonable restrictions?
A. No. Arts. 19(2) to (6) still require a restriction to be reasonable and to fall under a permitted ground. Proportionality is the structured method now used to decide whether a restriction is reasonable, with four stages: legitimate aim, suitability, necessity and balancing.

Q. What is the golden triangle?
A. The phrase for Arts. 14, 19 and 21 read together after Maneka Gandhi (1978). A law affecting personal liberty must satisfy all three: it must be non-arbitrary, a reasonable restriction on any affected freedom, and prescribe a procedure that is right, just and fair.

Q. Do fundamental rights apply against private persons?
A. Some do by their terms (Arts. 15(2), 17, 23, 24). In Kaushal Kishor v State of UP (2023) a Constitution Bench held by majority that Arts. 19 and 21 can also be enforced against non-State actors.

See also: Note 28 (rights and duties, Hohfeld), Note 29 (theories of rights), Note 40 (rule of law), Note 46 (constitutional doctrines), Note 48 (liberty and equality), Note 78 (natural and legal rights).