Basic constitutional rights of citizens (from Articles 12-35) listed in Part III of the Constitution of India are the basis of the Indian republic. They are derived from the American Bill of Rights, the Irish Constitution, and other global legislative instruments which all grant some basic freedoms and protections to all persons (and in some instances noncitizens) against State actions. Citizens can enforce the Bill of Rights before the Supreme Court of India, or in High Courts of the respective state by Article 32 and Article 226.
The Bill of Rights was established with the Constitution in 1950, but over time and through the process of amendments, judicial pronouncements, and the changing social and political context, the meaning, breadth of coverage, and enforcement capacity have been transformed.
1950–1960: Early Interpretation and Judicial Conservatism
The judiciary also used to construe the Fundamental Rights in very narrow way when the text in the Constitution compelled them to do so. For instance, in A.K. Gopalan v. State of Madras (1950), the Supreme Court construed Article 21 (Right to Life and Personal Liberty) in very narrow manner, and held that “the procedure established by law” need not really be just or fair, but only needs to be provided by law (It should be noted as well, that even the Court’s understanding of the fundamental rights was still attempted to impose tensions between the Fundamental Rights and the Directive Principles of State Policy (Part IV) at that time).
For example, in State of Madras v. Champakam Dorairajan (1951), the Supreme Court struck down caste-based reservations for admission to institutions of education, which (most likely) would have been harmful to Article 15(1). This led to a First Constitutional amendment (1951), which amended Article 15(1) by adding Article 15(4). Article 15(4) permitted affirmative action for socially and educationally backwards classes.
1960–1970: Expansion and Conflicts with Property Rights
The Right to Property (then Article 31) was the subject of a number of significant disputes overall, and, in particular, these disputes stemmed from laws intended to redistribute land itself to landless persons. There were a number of disputes over laws supporting land redistribution, which justified their disputes on a violation of property rights.
Thereafter, Parliament passed a number of amendments, including the Fourth Amendment (1955), ultimately clarifying that agrarian reform was not subject to judicial review.
The clashes between the judiciary and legislature, were many, including in the Golaknath v. State of Punjab (1967) decision, which ruled that the Parliament cannot amend Fundamental Rights under Article 368. This case led the government to assert its presumed parliamentary supremacy through subsequent constitutional amendments.
1970–1980: Basic Structure Doctrine and Post-Emergency Realignment
The conflict reached a boiling point in Kesavananda Bharati v. State of Kerala (1973), in which the Supreme Court held that Parliament was free to amend any of the Constitution, including Fundamental Rights, but was constrained from changing the basic structure (or framework) of the Constitution.
This doctrine of basic structure protected the most essential checks on government authority, including constitutional supremacy, separation of powers and federalism. During the Emergency (1975 – 77), the 42nd Amendment (1976) curtailed judicial review, and in the ADM Jabalpur v. Shivkant Shukla (1976) (the Habeas Corpus issues) the Court controversially held that the right to life of Article 21 under the Constitution could be suspended altogether.
This black chapter of Indian democracy ended with a bang – the 44th amendment (1978) restored rights to a degree, and Article 21 was made non-suspendable, even in emergencies.
1980–2000: Judicial Activism and Broad Interpretation
In just ten years of phenomenal growth of Fundamental Rights in the form of Public Interest Litigation (PIL) and a broad constructionist judiciary, Maneka Gandhi v. Union of India (1978) overturned A.K. Gopalan and in essence the ‘procedure established by law’ in Article 21 is required to be ‘just, fair and reasonable’ to import due process to the Constitution.
Article 21 became the source for most, if not all, marijuana derivative rights, for example the right to a healthy environment (Subhash Kumar v. State of Bihar), the right to free legal aid (Hussainara Khatoon v. State of Bihar), and the right to a means of livelihood (Olga Tellis v. Bombay Municipal Corporation). Even the freedom to speak under Article 19(1)(a) in the second case of Indian Express Newspapers v. Union of India (1985) was broadened too.
2000–Present: Digital Age, Privacy, and New Rights
In the first decade of the 21st century, courts also continued to express Fundamental Rights in the modern context. The right to education was elevated by the 86th Amendment (2002), which added Article 21A, which establishes the right to free and compulsory education for children in the 6-14 age group.
The ruling in Puttaswamy v. Union of India (2017) recognised the right to privacy as a fundamental right under Articles 14, 19, and 21, influencing data protection law, laws regulating the surveilling of others and lower courts nationwide.
The decriminalisation of homosexuality in Navtej Singh Johar v. Union of India (2018) construed sexual orientation under the framework of dignity, worthiness and equality. Likewise, in Joseph Shine v. Union of India (2018), adulterous conduct was declared unconstitutional, while Shafin Jahan v. Asokan (2018) recognised individuals’ right to elect their partner as being a matter of personal liberty.
The Court’s understanding of freedom of speech as it pertains to online expression, intermediary liability and offline expression concerning false news developed as it did in Shreya Singhal v. Union of India (2015), which struck down s.66A of the IT Act for infringing on freedom of speech.
Current Trends and Challenges
Over time, Fundamental Rights have grown from a narrow, literal approach to a more fluid, purposive approach aimed at realising the spirit of the Constitution. At the same time, there are many complexities like balancing national security with freedoms, equality with affirmative action, speech with hate speech, and privacy with mass surveillance.
Courts are now often drawn on proportionality tests to determine whether rights infringements can be justified, but as the inability of the individual against the state to claim their fundamental rights is an issue, likely, the tension between the interests of the individual’s civil liberties and that of the state will never truly cease.
Conclusion
Over the past seventy years, since 1950, Fundamental Rights in India have evolved from fixed, legal guarantees to living, evolving principles over which the courts scour meanings, societal change, and constitutional amendments have influenced.
The context and evolution of Fundamental Rights in India, from A.K. Gopalan to Puttaswamy, show us that our constitutional framework is firmly established, is resilient, and is flexible to embrace evolving notions of liberty, equality, and dignity while preserving the idea that such rights protection is critical to the survival of democracy in India.
