CONSTITUTIONAL AND HUMAN RIGHTS LAW

ABSTRACT

The Constitution of India, adopted in 1950, is a profound legal document that not only lays the framework for governance but also enshrines a comprehensive set of rights designed to protect the dignity, liberty, and equality of every individual. Unlike many constitutions that merely enumerate rights precisely, the Indian Constitution envisions rights as dynamic instruments that evolve with societal needs. This progressive outlook is crucial in a country marked by diverse cultures, complex social hierarchies, and historical inequalities.

It contains Fundamental Rights in Part III that are the foundation of Indian democracy, encapsulated in rights that are enforceable (by the courts), that guarantee protection from arbitrary state action, and that give citizens the tools and processes needed to claim justice. As such, the rights also embody India’s commitment to international human rights principles but are also shaped to the particularities of India’s socio-political context. 

This article aims to critically analyze the historical evolution and judicial interpretation of constitutional and human rights in India, the mechanisms for enforcement, and the continuing challenges to enforcement, along with the emerging challenges associated with the digital age, including privacy and data-protection.

HISTORICAL AND PHILOSOPHICAL FOUNDATIONS

Dr. B.R. Ambedkar, the chief framer of the Constitution, insisted that rights do not just exist in paper but serve as a proactive mechanism that facilitate the marginalized within society and act to deter excesses of the State. The Indian Fundamental Rights contained in Part III of the Constitution are perceived by many as the last protection of this particular vision of rights in India, especially Articles 14, 19 and 21. Article 14 contains the subjection of all persons to equality before the law. Article 19 gives a person the right to free speech and association, among other freedoms. Article 21 guarantees right to life and personal liberty.

Rights are not absolute. The Constitution provides for “reasonable restrictions” on rights in the interest of sovereignty, public order, morality and other essential state interests. The competing obligations of the individual to rights and society to welfare is the largely treacherous waters of Indian constitutional interpretation. 

JUDICIAL INTERPRETATION AND EXPANSION OF RIGHTS

The judiciary, particularly the Supreme Court, has played a crucial role in breathing life into constitutional rights. Its interpretative strategies have often expanded the ambit of fundamental rights beyond their textual confines.

One landmark judgment that altered the landscape was Maneka Gandhi v. Union of India (1978)^[1], where the Supreme Court held that the procedure depriving a person of life or liberty must be “just, fair, and reasonable.” This widened the understanding of Article 21, ensuring procedural fairness and embedding due process protections.

Additionally, freedom of speech under Article 19 has been robustly defended. In Shreya Singhal v. Union of India (2015)^[2], the Court struck down Section 66A of the IT Act, which criminalized online speech vaguely, recognizing the importance of free expression in a democracy.

RIGHT TO PRIVACY POST-PUTTASWAMY: A LANDMARK SHIFT

The Supreme Court of India, in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, held that the right to privacy is a fundamental right under Article 21 of the Constitution. This decision overruled the previous position established in M.P. Sharma v. Satish Chandra (1954)^[3] and Kharak Singh v. State of Uttar Pradesh (1964)^[4], where privacy was not recognized as a distinct right.

The judgment marked a constitutional shift, aligning Indian law with global human rights by defining privacy as a cluster of rights, including bodily integrity and informational self-determination.

However, privacy is crucial, it’s not absolute; a three-part test for infringement involves legality, necessity, and proportionality. This was evident in the K.S. Puttaswamy v. Union of India (2019) case, where the Court upheld the Aadhaar project as constitutional but limited its use to welfare schemes, reflecting a balance between individual rights and practical challenges in a developing state.

CONSTITUTIONAL REMEDIES AND ACCESS TO JUSTICE

The Constitution grants citizens the right to seek remedies for violations of their rights under Articles 32 and 226, which provide directions to the Supreme Court and High Courts respectively. These rights are often referred to as the “soul of the Constitution” because they allow for the judicial enforcement of fundamental rights.

The emergence of Public Interest Litigation (PIL) has opened up the justice space, allowing individuals and groups to file petitions on behalf of those who are unable to assert their rights for diverse reasons. Cases such as Vishaka v. State of Rajasthan (1997)^[5] show how PIL mechanisms can create courts protections against sexual harassment at the workplace when there are no statutory regimes.

However, judicial activism has occasionally drawn criticism for overstepping into policy-making domains, raising questions about the separation of powers.

SOCIO-ECONOMIC RIGHTS AND DIRECTIVE PRINCIPLES

While Fundamental Rights are enforceable in courts, the Directive Principles of State Policy (Part IV) are non-justiciable. However, they provide essential guidance to the state in crafting laws and policies aimed at achieving social and economic justice. These principles emphasize goals such as equal pay, health care, education, and social welfare, acting as a moral compass for governance.

In the past, the Supreme Court has imaginatively developed the Fundamental Rights in the light of Directive Principles. This interface can be seen in a landmark case, Unni Krishnan v State of Andhra Pradesh (1993)^[6], when although education was only previously a directive principle of the state, the Supreme Court read the right to education into Article 21 of the Constitution. The right to education was subsequently written into the Constitution with the 86th Constitutional Amendment, being made expressly part of Article 21A, is another indication of how Part III and Part IV operate together, and this is going to occur in the right to health, housing and livelihood cases.

This fusion is also evident in cases dealing with health, housing, and livelihood. In Olga Tellis v. Bombay Municipal Corporation (1985)^[7], the Court held that the right to livelihood is an integral part of the right to life.

Such interpretations demonstrate how courts have addressed socio-economic realities by transforming constitutional text into a tool for inclusive justice.

CHALLENGES IN THE REALIZATION OF RIGHTS

Despite a solid constitutional framework, and a judiciary that has espoused progressive interpretations of constitutional rights, practical implementation of rights presents significant obstacles. Enforcement with marginalised communities is particularly vulnerable to the gap between what the law provides as rights and what they are able to achieve.

For example, Article 15 prohibits legal discrimination based on caste, race, sex or religion; however, discrimination and caste-based violence remains a common occurrence. Similarly, while gender equality is widely acknowledged within Article 14, the social, economic and institutional barriers which women face socially, especially those from rural areas, limits their access to public education, health, and employment.

While developments like Article 19 exist to protect freedom of speech and expression, the subversion of these rights is more common. For example, the events that press surveilled journalists, bordering on criminal investigation and speculation, which increasingly included the arrests of journalists due largely to false claims, internet shutdowns and misinformation, and press freedom being curtailed, even states were active participants in creating a wall where courts and authorities collude to suppress public dissent, particularly outside of the national security ideal, purposes, and preferences.

When one considers the backlog of court cases in our legal system, probably the only thing worse than losing confidence in raising a legal issue is losing confidence in raising a legal issue and having it heard in judicial settings that routinely accept legal delays. We currently have caseloads of more than 50 million outstanding cases with India’s courts. This remains a distant dream for everyone to seek timely justice. The burdened judiciary and lack of infrastructure make it impossible to seek timely justice surmounting the procedural bottlenecks that overwhelmed courts create for the impoverished and neglected.

EMERGING ISSUES: TECHNOLOGY, PRIVACY, AND DATA PROTECTION

The emergence of the digital era has posed new challenges to public law in relation to constitutional rights – specifically around issues of privacy, surveillance and data. Many aspects of our lives have been digitized, and the level of online communication has surged, which has resulted in personal data being seen as both a commercial asset and liability.

In India, the Puttaswamy decision in 2017, ruled that “the right to privacy” is an intrinsic right under Article 21 of the Indian Constitution and for the first time, the need for “informational privacy” was recognized as intrinsic to a person’s dignity and ability to act autonomously. This judgment has served as a foundation on which regulatory frameworks can be built to protect individual data.

The Digital Personal Data Protection Act, 2023 (DPDP Act) establishes a framework for collecting, processing, and storing personal data, empowering individuals with control over their information and outlining remedies for breaches.

However, critics claim it lacks adequate safeguards against state surveillance and grants excessive exemptions to government agencies, particularly with provisions allowing the government to bypass consent for national security. The lack of a robust, independent data protection authority has also eroded public trust. The issue of algorithmic bias, facial recognition, and automated decision-making by AI systems also poses challenges. These technologies, when unregulated, can reinforce discrimination and invade privacy, requiring urgent legislative and judicial attention.

To summarize, while the Indian Constitution has adapted to include digital rights, legal developments must keep pace with technology. Change is necessary if individuals expect to protect individual freedoms in the age of technology.

MINORITY RIGHTS AND PLURALISM

India’s pluralistic fabric is enshrined in its Constitution through protections for religious, linguistic, and cultural minorities. Articles 25 to 30 secure religious freedom, cultural preservation, and educational rights for minorities.

Even though these rights are established and guaranteed, they have often been challenged in the socio-political space. In recent times, discussion of the Citizenship Amendment Act (CAA), restrictions around religious conversions, and the ramifications for minority institutions and the educational autonomy for minorities have heightened fears of the gradual erosion to these constitutional guarantees.

The Court’s rationale in Bijoe Emmanuel v. State of Kerala (1986)^[8], protecting the Jehovah’s Witnesses from singing the national anthem, is effective in underlining the protection of individual religious freedoms. The Court held that “Constitutional Morality would demand that tolerance and respect should exist towards each in accordance with their distinctive faith – in order to safeguard the constitutional and individual rights of each person, agreement is not always necessary.”

Even with the important clarifications by the Court on the need for tolerance of varying views and practices in a diverse society, the trends toward communal polarization and majoritarian pressures threaten those constitutional ideals. Faith and belief systems ought to be respected and protected not simply as legal rights, but as moral rights. This need has perhaps never been greater.

FREEDOM OF EXPRESSION VS. HATE SPEECH

The judiciary has had to perform balancing acts to reconcile these competing factors. As a potent example, the Court struck down Section 66A of the IT Act in Shreya Singhal, where the Court emphasized protecting political speech and political criticism. On the other hand, the Court, in cases like Pravasi Bhalai Sangathan v. Union of India (2014)^[9], declined to establish elaborate guidelines pertaining to hate speech, relegating the matter to the legislature.

Social media increases the hate speech problem. Regrettably, the proliferation of online content related to communal, casteist, and misogynistic phenomena saturates online platforms, generally avoiding regulatory scrutiny. The state has an obligation to intervene and prevent incitement of violence against marginalized and vulnerable groups, but it is equally prohibited from carrying out excessive censorship of prohibited speech that has the effect of chilling legitimate dissent.

There is an urgent need for a nuanced framework that distinguishes between legitimate criticism and incitement to violence. The framework should include judicial review, civil society contributions, and platform accountability.

UNIFORM CIVIL CODE AND CONSTITUTIONAL MORALITY

Article 44 of the Constitution calls for a Uniform Civil Code, which would replace all personal laws based on religion with a single set of common civil laws. The UCC has been argued one way or another since before our independence, and there are a number of political and legal nuances to the debate. Although proponents of the UCC argue that it would help with gender equality and societal integration, those who oppose it believe that implementing a UCC and establishing secular citizenship will go against the minority identity of many in the country.

The Supreme Court case Shah Bano v. Union of India (1985)^[10] found it unfortunate that the UCC has not yet been enacted, especially for the protection of gender justice of Muslim women. However, the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which reversed the Shah Bano judgment speaks to the complex social interplay of law – with religion and political agendas having a primary role.

We are now seeing developments at the state-level looking to introduce a UCC, raising the debates goes from the back table to the top of the conversation. The debate will be difficult, as creating and facilitating a civil code while recognizing and protecting the plurality of religions but also whilst upholding the basic constitutional morality – that laws taken in the name of a religion cannot continue perpetuating gender or caste inequality.

CONCLUSION: A FINAL ANALYSIS

The development of constitutional and human rights law in India reflects both the triumph of legal imagination and the ongoing struggle for justice. From colonial constraints to a more inclusive understanding of rights, the Indian Constitution is a dynamic document aimed at promoting equality, dignity, and liberty.

However, tensions remain as the judiciary walks a fine line between interpretation and active involvement. The shift from rigid textualism to transformative constitutionalism has encouraged courts to rethink the Constitution’s application. Current debates on free speech, privacy, and censorship reveal that the fight for rights is still relevant, with threats from majoritarian politics and restrictive laws.

In summary, India’s constitutional and human rights law is a living dialogue that requires constant vigilance. Citizens and legal practitioners play a crucial role in safeguarding the Constitution’s promises to ensure the future of democracy thrives on strong institutions and informed participation.

REFERENCES

[1] Maneka Gandhi v Union of India (1978) 1 SCC 248 (SC)

[2] Shreya Singhal v Union of India (2015) 5 SCC 1 (SC)

[3] MP Sharma v Satish Chandra (1954) SCR 1077 (SC)

[4] Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332 (SC)

[5] Vishaka v State of Rajasthan (1997) 6 SCC 241 (SC)

[6] Unni Krishnan JP v State of Andhra Pradesh (1993) 1 SCC 645 (SC)

[7] Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 (SC)

[8] Bijoe Emmanuel v State of Kerala (1986) 3 SCC 615 (SC)

[9] Pravasi Bhalai Sangathan v Union of India (2014) 11 SCC 477 (SC)

[10] Mohd Ahmed Khan v Shah Bano Begum (1985) 2 SCC 556 (SC)