More rights, fewer remedies: judicial pronouncements and its own discontents

By Himanshu Mishra 31 Minutes Read

“Cry my beloved country,…
….Cry for judges, former or present, who have achieved no rapprochement, even if attempted,
Cry for an executive that can continue to frustrate a constitutional cause through obfuscation and artifice.
Cry for those in court who wait for justice before an empty chair…
…Cry for you and for me.”
-Gopal Sankarnarayan, preface to the eleventh edition 2018, the Constitution of India, EBC.


Constitutionally speaking, the Supreme Court of India stands to be the custodian of fundamental rights. However, some argue that it has become more a pronouncer of the rights than ensuring their enforcement. Recently the legitimacy of the supreme court has been questioned sighting the problems of judicial appointments and the persisting pendency in courtrooms. Among these problems, it has been said that the overarching jurisdiction and activism of judiciary has been a tool to hide its pitfalls. Every right needs probes institutional machinery for its implementation.

India being a developing country, has been struggling with providing resources for the enumerated fundamental rights. In this situation, more pronouncements of some rights may compromise the working capacity of the existing structure. In such a case, this article explores what the rights which are protected by an institutional framework are? What are the rights which nowhere come within the minute attempt of enforcement? What are the rights which remain to be merely pronouncement of the Supreme Court and lacks implementation? What are the definite problems which become an impediment in the implementation and enforcement of such rights? What kind of institutional changes may result in appropriate enforcement of rights?

This article is divided into three parts. The first part deals with the concept and the evolution of fundamental rights. This situates the development of rights in the distinctive social-political milieu. The second part deals explicitly with the extended scope of the right to life and personal liberty, considering the judgements of the supreme court. The third part suggests some measures which can be taken to eradicate impediments in the enforcement of rights and what kind of new institutions can be built for such an object.

Part I

Evolution And Concept Of Fundamental Rights

Indian constitutional law has emerged as important legal text in the world’s constitutional history. Considering the diverse history of Indian resembles the culmination of many social and political facest in one stream of an idea. This one stream continues to be contested by various perceptions. This document gave birth to the very ‘political’ in India. It only enshrines the principles of past but also guides us to the future of this country. It has been the normative and legal framework through which the world’s largest democracy contests its own future. [1]

Indian constitution has emerged as a document that has sustained democracy in the Indian subcontinent. It has a diverse legal history, starting from the freedom movement, which culminated in the form of a single document. At the time of independence and so as now, it reflects the mindset of people who fought for it and contributed in the formation of a document that shall later guide the polity of Indian nation.

India hasn’t been able to isolate itself from ongoing emergence of powerful “juristocracies” around the world.[2] This growing faith in constitutionalism is attributed not merely to regime change but also to neoliberalism and the growth of transnational and human rights networks in the 1990s.[3] Both neoliberalism and globalization lead to greater dispersal of governance and the fragmentation of state authority, granting law a greater communicative force. In the last decade, intellectual historians and political theorists have made an effort to come to the rescue of the Indian Constitution and rehabilitate it as “a moral document embodying an ethical vision.”[4]

Howsoever, sagacious and sanguine one may be with regard to the execution and implementation of any constitution, there are always chances that the political authority may misuse the provisions enshrined in the constitution and convert citizens into its political subjects. Therefore the concept of rights becomes important as it guarantees some fundamental freedoms and circumstances in which one may realize his lawful liberties and pursues his own morals in life. Further rights also ensure equal participation of everyone in the polity. Therefore a constitution not only characterizes the nature and extent of the power exercised by the institutions but also empowers individual to check and balance the power executed by such institutions.


India has an entire staircase as legal history, where each pedestal was an event towards the formation of free and independent India. All the different ideologies came together for the independence of India. There was an absence of an idea of fundamental rights however; some communal rights were given to the different communities related to the political representation. The right to freedom and expression had remained curtailed with limited permission given to the newspapers. However, the idea of freedom came with the western education and landed into earlier civil society of Bengal and later expanded to entire India.[5] None of the acts passed during the colonial rule had any provision, which ensured any basic rights of the individual. However, the Nehru report has a substantial mention of the fundamental rights of the citizen of India.[6] This report further paved the way for the enactment of the constitution of India and many ideas were taken from it. 

Constituent Assembly Debates

After the independence the constituent assembly was entrusted with the enactment of constitution of India. It has been argued that it didn’t represent two main currents of ideas of freedom struggle. The Gandhian idea and the communist idea were missing from the assembly.[7] Later it was suggested that the congress in itself presented all the major ideological currents in the India. This exercise of popular sovereign power through the Assembly to create a new political order represented both an exercise in rational discourse and an assertion of sovereign will to create a new political identity and principles of government. The symbolic significance of the Assembly was clear in Nehru’s Objectives Resolution. As Nehru said, the Assembly had gathered ‘because of the strength of the people behind us and we shall go as far as the people— not any party or group but the people as a whole—shall wish us to go’.

Post- independence

The primary object of an independent Indian state was to reduce the dependency on the British state. The initial political structure was based on the class and caste, not on individual identity. Its foreign policy was based on principled nonalignment between the Eastern and Western blocs during the Cold War and opposition to militarization.[8]

Idea of fundamental rights

The concept of fundamental rights emanates from the concept of natural rights. Natural rights are some those inalienable rights which cannot be taken away by any authority. These rights are rudimentary for human existence. This corresponds to the idea of human rights. Natural Rights thus led to the formulation of Human Rights and the influence of Natural Rights can be found not only n the English Bill of Rights (1689), the French Declara­tion of Rights of Man (1789), the United States’ Bill of Rights (1791), the Universal Declaration of Human Rights (1948), but also in Part III of the Constitution of India which deals with Fundamental Rights.

Part III of the Constitution of India is described as the Magna Carta of India. These rights impose a negative obligation on the state not to encroach upon the liberty of an individual. These rights in the Constitution serve the purpose of reminding the Government in power to respect those rights and limiting the range of activity of the State in appropriate directions.

Constitution of India can be classified under six groups. They are (i) Right to equality (Articles 14-18), (ii) Right to freedom (Articles 19-22), (iii) Right against exploita­tion (Articles 23-24), (iv) Right to freedom of religion (Articles 25-28), (v) Cultural and educational rights (Articles 29-30) and (vi) Right to constitutional remedies (Articles 32-35).  The evolution of fundamental rights can be understood in the three phases. In the first phase, “directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts”. In the second phase, the environment concern was taken into account and in the third phase, there was an emphasis on maintaining probity, integrity in governance and transparency.[9]

One more classification can be advanced characterizing two types of rights. One is enumerated in part III of the constitution. And the others are unremunerated rights, which are not mentioned in the constitution, but the judicial pronouncements make them part and parcel of fundamental rights. These can be further divided into two parts: auxiliary and penumbral rights.

Part II

Broadening the scope of rights: life and liberty

Rights and Institutions

As it has been mentioned above that the fundamental rights have also consisted of unremunerated rights, they have an equal force of law as the enumerated rights. The rights, which were held to be an extension of existing rights, are auxiliary rights and those supplements the auxiliary rights are penumbral rights. For example, the right to life and personal liberty is an enumerated right. In the furtherance of this, the right to human dignity can be understood as auxiliary right and the right to social security or the right to write a book can be characterized as the penumbral right. Primarily all the fundamental rights are protected by the constitution and one can reach the Supreme Court or high court against the violation of fundamental right. Later on for ensuring the protection of rights many legislations have been enacted for the protection of different fundamental rights.[10] These enactments contain some basic rights ensured to individual and one may reach to a particular court or tribunal if any right is encroached upon. Therefore this can up to some extent give an answer to our first question that how does the constitution ensure the protection of fundamental rights. But it answers partially to the second question that what kinds of rights are protected but the constitutional or other enactments. As it can be argued that the enumerated rights and up to some extent some auxiliary rights are only institutionally protected, most other rights remain to be mere judicial pronouncement and still wait for their implementation. 

Liberty and Life

Article 21 has been one of the most interpreted articles among other fundamental rights. In common parlance, life connotes animation or period from birth to death of every living thing. But in the broader sense life means activeness, dynamism, exuberance, liveliness, vigour and vitality etc.[11] Barker has defined personal liberty as “the liberty of a man which he enjoys in the capacity of an individual person”. According to him, there are three components of personal liberty. They are — (i) Physical freedom from injury or threat to life and health, and movement of the body; (ii) Intellectual freedom for the expression of thought and belief; and (iii) Practical freedom for the play of will and exercise of choice in the general field of contractual actions and relations with other persons.[12]

Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law Our Supreme Court in more than one decision has deduced freedom of the press from Article 19(1)(a) of the Constitution on the premise that it is implicit in the said guarantee. Thus, by creative judicial interpretation, freedom of the press has been given the constitutional status of a fundamental right in our Constitution. At various other places, the supreme court held that freedom of the press can not be curtailed and right to know is also a fundamental right.  Articles 19 and 21, and for such freedoms the State would have to satisfy the burdens envisaged in both provisions, along with satisfying the non-arbitrariness requirement of Article 14.

Therefore, the following scheme appears after Maneka:[13]

1. Freedoms that fall under both Articles 19 and 21: the Article 19 reasonableness test and the requirements of Article 21 would have to be satisfied, along with the Article 14 non-arbitrariness test.

2. Freedoms that fall only within Article 21: the Article 14 non-arbitrariness test along with the requirements of Article 21 would have to be satisfied.

Development of rights

In the Kharak Singh[14], the supreme court held that the right to life does not mean mere human existence but it also includes the dignity of an individual. Later on, in the Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors.[15] case apex court reiterated that the right to live with human dignity is the bare necessity of human life. The Supreme Court, by remarkable craftsmanship, has incorporated into fundamental rights some of the Directive Principles, such as those imposing an obligation on the state to provide a decent standard of living[16], a minimum wage[17], just and humane conditions of work[18], and to raise the level of nutrition and of public health.[19]It is due to this judicial technique that some socio-economic rights have been made living realities for the indigent and downtrodden segments of Indian humanity.[20] Because of the inordinate delays in criminal trials, the Supreme Court ruled that speedy trial is an integral and essential part of the fundamental right to life and liberty.[21] In its landmark judgment in Nilabati Behera v. State of Orissa[22], the Court held that the compensation awarded by it was not to be equated with damages in a civil action for tort, but was a grant of relief under public law “for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen”. It was clarified that the sum awarded would be adjusted if other proceedings are taken for recovery of compensation on the same ground so as to prevent payment twice over.

The further apex court has held that the individual also has a right to social security[23] and getting medical facilities[24]. This was further extended to the right to reputation, livelihood[25], shelter[26] and food[27]. And non-availability of medical facilities has been considered as the violation of article 21.

Part III

Rights’ Tryst With Institutional Enforcement

The judicial pronouncements have overburdened the other government functionaries with these rights. Although they are in consonance with the democratic spirit of India, but their untimely occurrences create a problem for the administration. It is not been said here that this should not be done rather the contextual and actual capacities of Indian states must also be taken into account. On the one hand, the institutions are lacking resources on the other the pronouncement of new rights not only complicates judicial process. The right to compulsory and free education[28] was held in the 90s and the act was later enacted in 2009. Here is an attempt to investigate the major causes of such imbalance between pronouncement and its enforcement.

Language shift

The language of article 21 is negative but after the Menka Gandhi judgment, it has been getting interpreted in positive terms. Earlier its intention was that state shall not enter into ones exercise of personal liberty. But after Menka Gandhi judgment, the state has a positive obligation to perform specific functions in order to ensure the life and personal liberty of an individual. Earlier states actions were restricted but such elaboration of language will make the state more responsible.

Pendency of cases

In the various reports, the law commission of India has dealt with the delay in deciding case and pendency of arrears in the high court and supreme court of India[29]. Various rights have been pronounced as the integral part of art 21 that ensure justice in a trial but they await adequate implementation. Law commission has recommended for the establishment of cassation benches in various regions throughout India.[30] These benches will be entrusted to solve the appellate cases and the principal bench at  Delhi will be responsible for the interpretation of the constitution. This will not only contribute to the speedy disposal of cases but also bringing the cost of justice within ones reach. The free legal aid remains to be in a moribund situation and mostly amateur lawyers are supposed to represent the litigant. This raises some serious question about the cost of interpretation of the law. When people are not supposed to pay for enactment and enforcement of law then why are they suppose to pay for its interpretation? This requires the proper establishment of legal machinery which can identify the indigent people and make them available learned advocates. This problem also permeates to the district level judiciary. There, as the prosecution is controlled by the government, therefore, the intensity of delivering justice changes with the change in the government.  It requires separate independent machinery for the prosecution where lawyers and police can work together to ensure justice in criminal law.[31]

Further, here it is pertinent to mention that the law commission has also recommended for the review of the L Chandra Kumar judgment.[32] This judgment allowed high courts to entertain appeals decided by the administrative tribunal. In another report[33] commission has extensively dealt with the all those cases where the bar on entertaining appeal in any court other than the supreme court has been struck down. In these cases the court has interpreted judicial review as part of the basic structure of constitution and such can not be taken away by any enactment. These tribunals are for ensuring speedy justice but the litigant is again enmeshed into this Kafkaesque procedures.

Institutional  impediments

Besides jurisdictional and theoretical concerns the existing institutional structure for ensuring the protection of fundamental rights lacks not only basic amenities but also regulatory mechanisms. The recent case of allegation of rape in Balika grah[34], or various other cases of custodial rape and violence portrays the deteriorating mechanism of social security. This could be attributed to the retreating status of the state. The rise of private resources and institutions give rise to the improper treatment of public resources and in the long run, when those private enterprises establish their monopoly they dictate their rules. The increased fees of private educational institutions depict the failure of public education at the primary and secondary level. However, in India, the public sector still remains to be most coveted.[35] 

Therefore this calls for the review of the definition of state within the constitution and the case Rajasthan electricity board v. Mohan Lal and other[36]s  needs to be revisited. The definition of state may be interpreted in such a way so that the private enterprises who have received any kind of support from the government must come under the state. The rule of  “instrumentality of government”[37] should be broadened up to the beneficiary of government. It means that if any institution receives any kind of benefit whether monetary or institutional that must come under the purview of the state. In India, a large part of the population still waits to get affordable amenities and when it will be able to take step toward better life than the state should not retreat rather must provide sufficient support in realizing their dreams.


India’s tryst with destiny started with the enforcement of the constitution. This supreme law of the land not only provided the foundation for the political structures of the country but also has aspired everyone to take every step towards a better life. Every institution has contributed to the development of a political, social and economic aspect of an ordinary person’s life and Judiciary has not been any different from them. It has helped Indian law to have evolved into a more flexible and progressive form from earlier parochial understanding. In this pursuit, the judiciary has pronounced many rights- some of which have been wholeheartedly accepted and implemented, whereas some still need attention. The existing public institutions should be strengthened and new must be created with full resources so that the pronounced rights can be realized by the people of India. This may change the notion that the declaration of rights is mere to camouflage the pitfall of organs of the Constitution of India.

[1] Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta. 2016. The Oxford handbook of the Indian Constitution, chapter 1.
[2] Ran Hirschl, Towards Juristocracy: The Origins and Functions of New Constitutionalism (Cambridge, MA: Harvard University Press, 2007).
[3] This period is marked by the collapse of communist regimes in Eastern Europe and Central Asia. Jeremy Gould, “Strong Bar, Weak State: Lawyers, Liberalism, and State Formation in Zambia,” Development and Change 37, no. 4 (2006): 921–41.
4. Rajeev Bhargava, ed., Politics and Ethics of the Indian Constitution (New Delhi: Oxford University Press, 2008), 2.
[5] Sudipta Kaviraj, Idea of freedom in modern India, The idea of freedom in Asia and Africa,(Stanford California, Stanford university press,2002)
[6] Nehru report 1928, Section 6.
[7] . Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1964), a study of constitution-making in the 1960s, remains the standard text on the subject
[8] . Sudipta Kaviraj, The Enchantment of Indian Democracy (New Delhi: Permanent Black, 2010).
[9]  State of Uttrakhand v Balwant singh chaawfal  (2010) 3 SCC 402
[10] For example see right to education act, right to food act and others.
[11] The New Encyclopaedia Britannica, Vol. 22 (15th edn.), p. 985
[12] Earnest Barker, Principles of Social and Political Theory, 1952, p. 146
[13] Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta. 2016. The Oxford handbook of the Indian Constitution. Ch. 42.
[14] 1963 AIR 1295, 1964 SCR (1) 332
[15] (1981)2 SCR 516, [16] Art 47, [17] art 43, [18] Art 42, [19] Art 47
[20] Soli J. Sorabjee, EXPANSION AND PROTECTION OF FUNDAMENTAL RIGHTS BY JUDICIAL INTERPRETATION AND INTERVENTION, 8th Durga Das Basu Endowment Lecture, Kolkata on February 7, 2015.
[21] Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81, [22] (1993) 2 SCC 746
[23] .I.C. of India v. Consumer Education and Research Centre 1995 AIR 1811, 1995 SCC (5) 482
[24] Parmananda Katara v. Union of India 1989 AIR 2039, 1989 SCR (3) 997; Consumer Education and Research Centre v. Union of India 1995 AIR 922, 1995 SCC (3) 42.
[25] Olga tells v BMC1986 AIR 180, 1985 SCR Supl. (2) 51
[26] chameli singh v state of U.P., [27] PUCL v UOI
[28] Mohini jain v state of Karnataka 1992 AIR 1858
[29] LAW COMMISSION OF INDIA Report No. 245 Arrears and Backlog: Creating Additional Judicial (wo)manpower July, 2014
[30] LAW COMMISSION OF INDIA Report No. 229, establishment od cassation benches.
[31]  Mehak BajpaiG S Bajpai | Updated: March 29, 2019, Acquittal of accused in SamjhauExpress case underlines need for cadre of professional prosecutors, Indian express.
[32] LAW COMMISSION OF INDIA Report No. 215.
[33] LAW COMMISSION OF INDIAReport No.272 Assessment of Statutory Frameworks of Tribunals in India October, 2017
[34], last accessed  on 08.04.2019.
[35], last accessed  on 08.04.2019.
[36] 1967 AIR 1857, 1967 SCR (3) 377
[37] Ramana Dayaram Shetty vs The International Airport … on 4 May, 1979, 1979 AIR 1628, 1979 SCR (3)1014

Himanshu Mishra

Research scholar, Center for Law and Governance, Jawaharlal Nehru University, New Delhi

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