Fundamental rights in India

When the Constitution of India was written there were already ample examples from other established democracies. These demonstrated a proliferation of approaches to defining the nature of rights and how to balance the protection of rights against the power of government. India choose to start with the basic position that any democratic government ought to be based on the principles of justice, liberty, equality and fraternity. These aspirational values are explicit in the Preamble and their message rings most loudly from Part III of the Constitution which establishes the fundamental rights of people in India.

The Constitution was not written in a vacuum of law, but was instead set against the existing legal structure of colonial British rule. Therefore, prior to establishing the fundamental rights of all people Article 13 announces that any currently existing laws that conflict with any of the fundamental rights established in Part III are void. Furthermore this article sets a threshold that no future laws may violate the fundamental rights either. Article 13 is sweeping in scope announcing that “laws” includes ordinances, orders, by-laws, rules, regulations, notification, custom, or usage.

Articles 14, 15, and 16 all deal with equal protection, anti-discrimination, and equality of opportunity. Article 19 guarantees important freedoms of expression, assembly, association, freedom of movement and settlement and the freedom to practice any profession. Article 21 provides that there shall be no arbitrary deprivation of life or liberty without procedure of law. While these provisions find many analogous protections in the U.S. Constitution it is the jurisprudence of India’s Supreme Court that really establishes the full reach of fundamental rights.

The U.S. Supreme Court has read fundamental rights into their Constitution finding an umbrella right of privacy that includes: marriage (although not yet same-sex marriage), sex, procreation, providing for one’s children’s educations, and abortion (with some limitations). However their has been very little jurisprudence on the right to life as an umbrella right. The Indian Supreme Court on the other hand has unpacked a whole host of rights from the right to life including: the right to a healthy life, the right to free medical care, the right to shelter, the right to grow, the right to nourishment, the right to a pollution free environment, the right to dignity, protection against industry, the right to education up to 14 years of age, the right to privacy, the right to a speedy and fair trial, the right to free legal aid, and the right to water.

To protect these rights Article 32 vests the Supreme Court with sweeping powers to provide remedies for violations of these fundamental rights. The Supreme Court has interpreted Article 32 broadly to allow for interim compensation for victims. Additionally the Supreme Court has relaxed the requirements of loci standi to allow advocates and even journalists to petition the court for remedies on behalf of others through Public Interest Litigation. The sweeping extent of fundamental rights and the expansive jurisprudence of the Supreme Court is truly remarkable in comparison to the United States and Western Europe.

You can also read a posting about the role of international law in Indian jurisprudence here.

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  1. [...] While not strictly international in scope the jurisprudence of the Indian Supreme Court in the realm of human rights is impressive. India boasts the longest Constitution of any nation running to almost 400 articles with 10 appendixes known as Schedules. Part III of their Constitution enumerates fundamental rights and the powers of the Supreme Court to provide remedies. For a more detailed analysis of human rights under the Indian Constitution see my posting here. [...]

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