TRANSFORMATIVE CONSTITUTIONALISM: EVOLUTION OF FUNDAMENTAL RIGHTS

Abstract

If Indian lawyers were surveyed for their favourite parts of the Indian Constitution, it is beyond reasonable doubt that a majority would name Part III. From the guarantee of codified rights and prerogative writs to the need, alongside the Directive Principles, to ensure social, economic and political justice for every member of the community, these rights have, since their inception, secured compliance by the organs of the State with democratic and moral standards of governance.

Fundamental Rights have evolved from a narrowly interpreted legal guarantee into a dynamic, living instrument that protects the rights of citizens and, in certain respects, of non-citizens as well. As Dr. B.R. Ambedkar aptly observed, Article 32 is the “heart and soul” of the Indian Constitution.[1] The prerogative writs, too, have undergone significant change over time, warranting a clear, chronological analysis. Judicial activism and constitutional amendments have together produced several maximum and minimum phases in the rights discussed here, along with rigorous restrictions and their later relaxation, making the subject both indispensable and genuinely engaging to study.

In this article, we examine the concept of “transformative constitutionalism” and trace the changes within Part III of the Indian Constitution, drawing on judicial trends and evolving jurisprudence.

Introduction

Many earlier bills of rights, ideals, and declarations have shaped the broadly interpreted list of Fundamental Rights recognised today. The unwritten Constitution of England, though it contains no codified Fundamental Rights as such, has been a cornerstone for the idea of enforceable Fundamental Rights in India. The recognition of basic human rights in England — without which democracy would be meaningless — has historically been secured through judicial decisions determining individual rights in specific cases.

The French Revolution has also deeply influenced the Fundamental Rights in the Indian Constitution through its philosophical foundations, promoting the values of liberty, equality, and fraternity. For instance, Articles 19, 21, and 25–28 of the Indian Constitution, which guarantee freedom of speech and expression, life and personal liberty, and conscience and religion respectively, draw heavily on the principle of ‘Liberty,’ which is explicitly mentioned in the Preamble. Similarly, Articles 14–18 secure ‘Equality,’ while the Directive Principles of State Policy, now read in harmony with the Fundamental Rights, advance the value of ‘Fraternity.’

The American Bill of Rights, comprising the first ten amendments to the US Constitution, has also encouraged the Indian judiciary to interpret the provisions of Part III broadly, through what might be called “judicial supremacy.” The adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948 likewise significantly influenced the drafting of the Fundamental Rights in India.[2] The recognition of inherent human dignity, civil and political rights, socio-economic justice, and transformative constitutionalism are, among others, concepts that the Constituent Assembly of India drew upon.

In this context, transformative constitutionalism warrants particular attention, as the trajectory of Fundamental Rights jurisprudence in India has consistently supported it. The Constitution is no longer merely a legal document, but an instrument of social change. The interpretation of various Fundamental Rights in harmony with global human rights norms ensures that the Grundnorm of the nation remains responsive and adaptive to contemporary challenges and democratic aspirations.

Background of Fundamental Rights in Modern Indian History

The need for Fundamental Rights has its roots in India’s colonial experience. Continuous and recurring subjection to arbitrary laws made clear to the framers of the Constitution that building a democratic and sovereign nation required freedom from arbitrary legislation and whimsical executive action. For this reason, a clear, codified set of rights was considered necessary to ensure the stability and development of individual liberties. This rights-centric approach was further fuelled by measures of the British Indian Government, such as the Rowlatt Act of 1919, which permitted detention without trial or proper representation. Events such as the Jallianwala Bagh massacre exposed the dangers of unrestricted state power and intensified demands for constitutional guarantees of liberty and equality.

The Nehru Report of 1928,[3] among the earliest constitutional documents to propose a bill of rights for India, advocated freedom of speech, equality before the law, freedom of religion, and universal adult franchise. Similarly, the Karachi Resolution of 1931 called for labour protections, gender equality, and protection against exploitation. Dr. B.R. Ambedkar and the Constituent Assembly ensured that these rights were drafted so that the State remained constitutionally limited, while citizens enjoyed enforceable — though not unlimited — safeguards against tyranny and social oppression.

Constitutional Framework of Fundamental Rights

Part III of the Indian Constitution constitutes the Fundamental Rights, set out in Articles 12 to 35. For a basic understanding, it helps to examine these provisions by category. Articles 14 to 18 guarantee the Right to Equality, including the principle of equality before the law — derived from the British constitutional tradition — and equal protection of the laws, derived from the American constitutional tradition. These articles also prohibit discrimination, guarantee equality of opportunity, and provide for the abolition of untouchability and of titles. Article 19 protects the Right to Freedom, which originally comprised seven distinct rights but was later reduced to six, after the right to property was removed from Part III and relocated to Article 300A.[4] Articles 20 to 22 provide protection in criminal proceedings, safeguard the right to life, and protect against arbitrary detention, respectively.

Articles 23 and 24 prohibit exploitation in the form of human trafficking, forced labour, and child labour. Articles 25 to 28 secure religious freedom and ensure secular, conscience-based governance. Articles 29 and 30 safeguard the cultural and educational rights of minorities. Article 31, prior to its removal, was central to many debates and amendments, since the compulsory acquisition of property without adequate compensation frequently came into conflict with the State’s socialist reform policies, particularly land redistribution and agrarian reform. Provisions such as Articles 31A, 31B, 31C, and 31D were added, removed, and re-added several times as governments and political priorities changed. The debate ultimately concluded with the repositioning of the right to property from a Fundamental Right to a constitutional (legal) right under Article 300A, by the 44th Amendment in 1978, with both Article 19(1)(f) and Article 31 removed from Part III in the process.

Finally, Article 32 of the Indian Constitution — without which, as Ambedkar observed, the Constitution would be a nullity — lays down the prerogative writs available before the Supreme Court of India in case of a breach of Fundamental Rights. Moving from a theoretical to an analytical discussion, the distinctive feature of the justiciability of Fundamental Rights comes into focus. Judicial review, itself a part of the basic structure of the Indian Constitution, ensures that the process of implementation and amendment remains transparent and consistent with the ethos of the basic structure.

Fundamental Rights, however, are not absolute. The Constitution permits reasonable restrictions in the interests of public order, morality, sovereignty, security, and general welfare. These rights, working alongside the Directive Principles of State Policy, ensure a careful balance between liberty and constitutional supremacy. The next section traces the changes brought about through case law, which have made Fundamental Rights more versatile than ever before.

Early Judicial Interpretation

The early years of Fundamental Rights jurisprudence reflected a relatively narrow approach to interpretation. A formalistic judicial method preferred procedural clarity over substantive fairness, thereby limiting the transformative potential of these rights. The first major case was A.K. Gopalan v. State of Madras (1950),[5] in which the Supreme Court narrowly interpreted Article 21 and held that “procedure established by law” merely required a law to be enacted by the legislature, irrespective of its reasonableness. The Court also held that the Fundamental Rights operated like watertight compartments, to be read independently rather than together.

This restrictive approach reflected judicial restraint, as the Court largely avoided entering into legislative affairs and prioritised parliamentary supremacy over judicial intervention, broadly following the UK model. At the same time, conflicts emerged over Parliament’s power to amend Fundamental Rights. In Shankari Prasad v. Union of India (1951)[6] and later in Sajjan Singh v. State of Rajasthan (1965),[7] the Supreme Court upheld Parliament’s power to amend Fundamental Rights under Article 368, reasoning that constitutional amendments did not constitute “law” within the meaning of Article 13.

As time went on, this tension intensified, culminating in the landmark judgment of I.C. Golak Nath v. State of Punjab (1967).[8] This judgment reversed the earlier position and held that Fundamental Rights occupied a “transcendental” position, placing them beyond the reach of ordinary parliamentary majorities. The judgment significantly altered the constitutional balance between the legislature and the judiciary, and reflected growing judicial concern over parliamentary amendments affecting civil liberties and property rights. Critics, however, argued that the judgment unduly restricted democratic governance by limiting Parliament’s constituent power. This unresolved tension eventually led to one of the most significant cases in Indian constitutional history: Kesavananda Bharati.

The early judicial interpretation of Fundamental Rights thus represents a gradual departure from strict, text-oriented jurisprudence toward a more activist, rights-focused constitutional philosophy. Although initially conservative, these early cases laid the foundation for the transformative constitutionalism and judicial activism that prevailed in later decades.

Transformative Constitutionalism and Judicial Activism

The most significant phase in the development of Fundamental Rights jurisprudence occurred in the 1970s, in the post-Emergency era. The turning point came in Kesavananda Bharati v. State of Kerala (1973),[9] in which the Supreme Court evolved the basic structure doctrine. The Court held that while Parliament possesses wide powers to amend the Constitution, including its Fundamental Rights provisions, it cannot alter the Constitution’s “basic structure.” The basic structure has been held to include, among other features, the supremacy of the Constitution, the separation of powers, judicial review, federalism, and the rule of law.

This judgment permanently changed the way the Constitution is understood, establishing constitutional supremacy over parliamentary absolutism and ensuring that transient political majorities could not dismantle the Constitution’s democratic foundations. The authoritarian conduct of the Emergency period (1975–1977) underscored the importance of judicial scrutiny and the protection of civil liberties. The suspension of rights, press censorship, preventive detention, and the broader misuse of executive power during this period exposed real vulnerabilities within constitutional governance.

Following this period, the Supreme Court adopted its most expansive interpretation yet, reaching a new high point of rights-based jurisprudence in Maneka Gandhi v. Union of India (1978).[10] The Court, for the first time, explicitly rejected the narrow reasoning of Gopalan and held that any procedure depriving a person of personal liberty must be “just, fair and reasonable.” It read Articles 14, 19, and 21 together as overlapping, interconnected rights forming what is often called the “Golden Triangle,” thereby creating an integrated framework of liberty and equality. The Maneka Gandhi judgment fundamentally liberalised Article 21, opening the door to numerous unenumerated rights. The meaning of “personal liberty” was no longer confined to mere physical restraint, but came to encompass fairness and substantive due process as well.

No account of the evolution of Fundamental Rights would be complete without the emergence of Public Interest Litigation (PIL). The judiciary relaxed procedural requirements to enable disadvantaged and marginalised communities to access fast and meaningful justice. In Hussainara Khatoon v. State of Bihar (1980),[11] the Court recognised the right to a speedy trial. In S.P. Gupta v. Union of India (1981),[12] the Court liberalised the rules of locus standi and expanded public access to constitutional remedies. Judicial activism transformed the judiciary into a guardian of social justice, and increased intervention in matters of prison reform, bonded labour, environmental degradation, and gender discrimination reflected this broader shift. This period thus marked the emergence of transformative constitutionalism, in which the Constitution came to be understood not as a static document but as an instrument of social transformation, aimed at achieving substantive equality and dignity.

Expansion of Article 21 and Other Emerging Rights

Among all the Fundamental Rights, Article 21 — the Right to Life and Personal Liberty — experienced the most dramatic and rapid judicial expansion. Originally confined to protection against unlawful deprivation of life and liberty, it gradually evolved into a far broader repository of protections. The Supreme Court interpreted “life” to mean a life of human dignity, rather than mere physical existence, and several derivative rights developed over time in response to the needs of society.

In Olga Tellis v. Bombay Municipal Corporation (1985),[13] the Court recognised the Right to Livelihood as an integral component of the Right to Life. Similarly, in M.C. Mehta v. Union of India (1987),[14] environmental protection was strengthened through the doctrine of ‘Absolute Liability,’ and the right to a clean and healthy environment gained constitutional significance through judicial recognition. Education rights were expanded in Unni Krishnan v. State of Andhra Pradesh (1993),[15] laying the groundwork for what later became Article 21A.

The Right to Privacy emerged as another landmark development in Justice K.S. Puttaswamy v. Union of India (2017),[16] where a nine-judge bench unanimously recognised privacy as intrinsic to Article 21. The judgment emphasised informational autonomy, bodily integrity, decisional freedom, and personal choice, and significantly informed ongoing debates concerning surveillance, data protection, and digital governance in India. Gender justice was further advanced through Navtej Singh Johar v. Union of India (2018)[17] and Indian Young Lawyers Association v. State of Kerala (2018).[18] In the former, Section 377 of the Indian Penal Code was partially struck down, decriminalising consensual same-sex relations between adults; in expanding constitutional protection for LGBTQIA+ persons, the Court reasoned that equality, privacy, and constitutional morality must prevail over majoritarian social morality. In the latter judgment, commonly known as the Sabarimala case, the Court addressed the tension between religious freedom and gender equality, reaffirming equality principles and demonstrating how constitutional morality should inform interpretation in such cases.

Contemporary Challenges to Fundamental Rights and Comparative Analysis

Like the double-faced Janus, the story of Fundamental Rights in India combines continuous development with persistent challenges. One major issue is the tension between national security and civil liberties. Preventive detention laws, anti-terror legislation, and surveillance mechanisms frequently raise concerns about arbitrary restrictions on liberty and privacy, while internet shutdowns and digital monitoring increasingly test constitutional protections in a rapidly digitising age.

Freedom of speech and expression similarly faces complex challenges, often curtailed in the name of combating hate speech, misinformation, sedition, and the proliferation of unregulated AI-generated content. The ongoing tension between judicial activism and the separation of powers also calls for closer examination. Critics argue that excessive judicial intervention in governance and policymaking risks undermining democratic accountability and legislative authority; supporters, on the other hand, view judicial activism as essential to expediting justice and protecting constitutional morality and vulnerable communities.

The future evolution of Fundamental Rights will therefore depend on balancing individual rights with security concerns, technological change with privacy, and judicial intervention with democratic governance. Comparative analysis offers useful lessons in this respect.

American constitutional law has influenced Indian judicial review and civil liberties jurisprudence, though India has adapted this model by permitting reasonable restrictions, intended to guard against potential misuse, in the interest of public welfare and social order. The South African Constitution offers another instructive comparison, since it explicitly recognises socio-economic rights such as housing, healthcare, and food. Although Indian courts lack equivalent explicit textual provisions, they have largely achieved similar outcomes through the creative interpretation of Article 21. Likewise, European jurisprudence has influenced Indian thinking on human rights, privacy, and proportionality analysis.

As a result, the Indian Fundamental Rights framework is often regarded as one of the most dynamic and progressive constitutional traditions in the world — one that combines doctrinal innovation with a strong rights-based tradition, and that gives weight to both liberal democratic freedoms and social welfare objectives in a manner that remains distinctive and, in many respects, genuinely innovative.

Conclusion

The evolution of Fundamental Rights in India reflects the dynamic and living character of the Constitution. What began as a set of procedural safeguards against State oppression has increasingly developed into a comprehensive framework protecting individual rights and social justice. The courts have transformed Part III into a powerful source of substantive human rights, embracing positive developments such as privacy, livelihood, education, dignity, environmental protection, gender equality, and personal autonomy. At the same time, new challenges continue to emerge alongside this progress: hate speech, national security, and socio-economic inequality continue to test constitutional protections. Ultimately, the future of Fundamental Rights will depend on maintaining a careful balance between fidelity to constitutional text and the evolving moral conscience of democratic India. One hopes that this jurisprudence continues to shape the nation’s constitutional identity in the pursuit of justice, as it has done over time.

References

[1] Constituent Assembly Debates, Vol. VII (9 December 1948), statement of Dr. B.R. Ambedkar on Article 32 (then Draft Article 25).
[2] Universal Declaration of Human Rights, UNGA Res 217A (III) (10 December 1948).
[3] All Parties Conference, Report of the Committee Appointed by the Conference to Determine the Principles of the Constitution for India (the “Nehru Report”) (1928).
[4] Constitution (Forty-fourth Amendment) Act, 1978, s. 2 & s. 6 (removing Art. 19(1)(f) and Art. 31, and inserting Art. 300A).
[5] A.K. Gopalan v State of Madras, AIR 1950 SC 27.
[6] Shankari Prasad Singh Deo v Union of India, AIR 1951 SC 458.
[7] Sajjan Singh v State of Rajasthan, AIR 1965 SC 845.
[8] I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643.
[9] Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
[10] Maneka Gandhi v Union of India, AIR 1978 SC 597.
[11] Hussainara Khatoon v State of Bihar, AIR 1979 SC 1369.
[12] S.P. Gupta v Union of India, AIR 1982 SC 149.
[13] Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180.
[14] M.C. Mehta v Union of India, AIR 1987 SC 1086.
[15] Unni Krishnan, J.P. v State of Andhra Pradesh, AIR 1993 SC 2178.
[16] Justice K.S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1.
[17] Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
[18] Indian Young Lawyers Association v State of Kerala, (2018) 13 SCALE 11 (decided 28 September 2018).