DATE- th Aug 2018

NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

PROJECT ON

“Historical Background and Evolution of Fundamental Rights in India”

FOURTH TRIMESTER

SUBMITTED TO: SUBMITTED BY:

PROF. Ms. Kuldeep Kaur Antra Sisodiya

Barrister-at-law from Lincoln’s Inn Section - A

ROLL NO. - 2017BALLB37

ACKNOWLEDGEMENT

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My Vocabulary falls short on words to express my heartily gratitude towards my Constitutional
law professor Ms. Kuldeep Kaur who gave me such a wonderful project to work upon which
made me know more about Fundamental Rights and its history and evolution.

Also I would like to thank the Prestigious Library of NLIU with the material of which I was
able to supplement this Project.

I would like to take out this moment lastly but certainly not the least to thank my parents and
the almighty under whose blessings I concluded this Project. I acknowledge the support of all
the aforesaid.

Thank You

Antra Sisodiya

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 Table of Contents

Statement of Problem............................................................................................................................. 4

Hypothesis............................................................................................................................................... 4

Objectives ............................................................................................................................................... 4

Introduction ............................................................................................................................................ 5

Fundamental Rights ................................................................................................................................ 6

History of Fundamental Rights ............................................................................................................... 6

Reasons for criticism of Fundamental Rights enshrined in the Constitution of India. ........................... 8

Violation of Fundamental Rights ............................................................................................................ 8

Article 32 ................................................................................................................................................. 9

Evolution of Fundamental Rights in Judiciary .......................................................................................10

Analysis and Conclusion ........................................................................................................................12

References and Bibliography ................................................................................................................13

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Statement of Problem
How has the role of judiciary evolved with respect to fundamental rights?

Hypothesis
That the judiciary has got empowered with the passage of time.

Objectives
 To analyze the history of Fundamental Rights.

 To understand the evolution of Fundamental Rights.

 To understand the role of judiciary with respect to Fundamental Rights.

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Introduction
Sixty eight years ago the constitution of India was framed. It all started from December
9th 1946 when in the constituent assembly convened to embark on the endeavour of framing of
the Indian constitution that was acceptable to all sections of free India. The Constituent
Assembly drafted the Constitution over a course of three years. What emerged after thirty-six
months of protracted and animated deliberations was the longest constitution ever drafted in
the world.
The framers of this constitution etched to this constitution an impressive array of
Fundamental Rights. The framers also vested the Supreme Court with the power to declare the
law and quash as unconstitutional any law or order that transgresses any fundamental right, a
power otherwise known as “Judicial Review”.
This Project deals with the history and evolution of fundamental rights in India with
special reference to the judiciary.

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Fundamental Rights
India is credited with having one of the finest democratic constitutions in the world.
Even though the Indian Constitution has undergone many amendments and has been subjected
to a lot of criticism, it has stood the test of time and has emerged as the beacon of hope, ensuring
liberty, equality and justice to the citizens. The Indian Constitution grants the citizens of India
some rights that guarantee civil liberty to its citizens so that they can lead their lives in peace
and harmony. These rights are meant to protect the dignity of an individual and create
conditions in which every human being can develop his personality to the fullest extent.1 These
rights have been provided in the Part III of the Indian Constitution and comprise of Articles 12
to 35.

The Indian Constitution, being a codified one, gives all the fundamental rights in the
constitution itself but the articles so provided in the constitution are skeleton articles and hence
are interpreted differently by the courts in different matters. The fundamental rights are not a
gift by the constitution whereas an individual possesses basic human right independently of
any constitution by reason of basic fact that they are members of human race.2

History of Fundamental Rights

The development of Fundamental Rights in India was inspired by historical examples
such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17
September 1787, final ratification on 15 December 1791) and France's Declaration of the
Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789).

There was a series of events which lead to the idea of Fundamental Rights in the minds
of the framers of the constitution. In 1919, the Rowlatt Act gave extensive powers to the British
government and police, and allowed indefinite arrest and detention of individuals, warrant-less
searches and seizures, restrictions on public gatherings, and intensive censorship of media and
publications. The public opposition to this act eventually led to mass campaigns of non-violent
civil disobedience throughout the country demanding guaranteed civil freedoms, and
limitations on government power. Indians, who were seeking independence and their own
government, were particularly influenced by the independence of Ireland and the development
of the Irish constitution.

1
Kaur K.; Constitutional Law Part II; NLIU Press; Page 71
2
M Nagraj v. Union of India AIR 2007 SC 71

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 Then in 1928, the Nehru Commission composing of representatives of Indian political
parties proposed constitutional reforms for India that apart from calling for dominion status for
India and elections under universal suffrage, would guarantee rights deemed fundamental,
representation for religious and ethnic minorities, and limit the powers of the government. In
1931, the Indian National Congress (the largest Indian political party of the time) adopted
resolutions committing itself to the defence of fundamental civil rights, as well as socio-
economic rights such as the minimum wage and the abolition of untouchability and serfdom.

Later the task of developing a constitution for the Constituent Assembly of India,
composing of, undertook the nation elected representatives. Constituent Assembly first met on
December 9, 1946 under the presidency of Dr. Sachchidananda Sinha later Dr. Rajendra Prasad
was made its President. While members of Congress composed of a large majority, Congress
leaders appointed persons from diverse political backgrounds for responsibilities of developing
the constitution and national laws. Bhimrao Ramji Ambedkar became the chairperson of the
drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons
of committees and sub-committees responsible for different subjects. A notable development
during that period having significant effect on the Indian constitution took place on 10
December 1948 when the United Nations General Assembly adopted the Universal Declaration
of Human Rights and called upon all member states to adopt these rights in their respective
constitutions.3

The fundamental rights were included in the First Draft Constitution (February 1948),
the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26
November 1949) prepared by the Drafting Committee.4

Then the fundamental rights were incorporated in the Constitution of India and till now
have been amended and had been subjected to criticism as well.

3
http://googleweblight.com/?lite_url=http://law.blogspot.com/2013/04/fundamental-rights-vis-vis-
fundamental.html?m%3D1&ei=F566dxom&lc=en-
last visited on 22-07-15 at 21:01:51
4
History and politics; NCERT

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Reasons for criticism of Fundamental Rights enshrined in the Constitution
of India.
The fundamental Rights enshrined in the Constitution of India have been subjected to
criticism of various political leaders and thinkers on several grounds. Some of those grounds
include:

1. Political groups have demanded that the right to work, the right to economic assistance
in case of unemployment, old age, and similar rights be enshrined as constitutional
guarantees to address issues of poverty and economic insecurity, though these
provisions have been enshrined in the Directive Principles of state policy.

2. The right to freedom and personal liberty has a number of limiting clauses, and thus
have been criticised for failing to check the sanctioning of powers often deemed
"excessive".

3. There is also the provision of preventive detention and suspension of fundamental rights
in times of Emergency. The provisions of acts like the Maintenance of Internal Security
Act (MISA) and the National Security Act (NSA) are a means of countering the
fundamental rights, because they sanction excessive powers with the aim of fighting
internal and cross-border terrorism and political violence, without safeguards for civil
rights.

4. The meaning of phrases like "reasonable restrictions" and "the interest of public order"
have not been explicitly stated in the constitution, and this ambiguity leads to
unnecessary litigation.

5. "Freedom of press" has not been included in the right to freedom, which is necessary
for formulating public opinion and to make freedom of expression more legitimate.

6. Employment of child labour in hazardous job environments has been reduced, but their
employment even in non-hazardous jobs, including their prevalent employment as
domestic help violates the spirit and ideals of the constitution.

Aforesaid are “some” of the grounds under which the Fundamental Rights have to face
criticism.

Violation of Fundamental Rights

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 In the case of infringement of the Fundamental Rights in Part III of the constitution
special remedy has been provided. Articles 32 to 35 deal with right to Constitutional remedies
in the case of violation or infringement of fundamental rights guaranteed in Part III of the
constitution.

Thus, the judiciary comes into picture when there is an infringement or violation of
fundamental rights. Such a situation occurs when there is some law made which is inconsistent
with or in derogation of the fundamental rights; or someone has been denied of his fundamental
right. Herein, right to move to the court under Article 32 is also a fundamental right.

Article 32
The title of this article says “remedies for enforcement of fundamental rights conferred
by this part5”. It describes the different types of writs i.e. habeas corpus, mandamus, certiorari,
prohibition and quo warranto. Unlike other fundamental rights it is remedial and not
substantive in nature. This article was called the “heart and soul” of the Indian Constitution
by Dr. B.R. Ambedkar. The Supreme Court is made the protector and guarantor of
the Fundamental Rights. It is not obligatory for the court to follow adversary system on cases
related to this Article and 'appropriate proceedings' are sufficient. The remedy sought must be
correlated to one of the fundamental rights sought to be enforced. As far as Locus Standi is
concerned this right could be availed by those whose fundamental rights are infringed. This
was later relaxed to allow Public Interest Litigation cases thus allowing any 'public spirited
citizen' to file the case.

This remedy is most sought by the people. Sometimes new laws are also made with
respect to the cases filed under this article. There is a special relationship between Clause (1)
of Article 32 and Sub-clause (a) of Clause (1) of Article 19, which guarantees citizens the
freedom of speech and expression. The very genesis, and the normative desirability of such a
freedom, lies in historical experiences of the entire humanity: unless accountable, the State
would turn tyrannical. A proceeding under Clause (1) of Article 32, and invocation of the
powers granted by Clause (2) of Article 32, is a primordial constitutional feature of ensuring

5
The Constitution of India; Bare Act; All India Reporter

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such accountability. The very promise, and existence, of a constitutional democracy rests
substantially on such proceedings.6

It has also been held that, Court may award compensation under Articles 32 and 226 in
cases where violation of Article 21 involving custodial death / torture is established or is
incontrovertible. Award of such compensation will not affect the right to claim additional
compensation by way of civil or criminal action.7

Evolution of Fundamental Rights in Judiciary

Though the judiciary was given powers under the constitution of India by way of
Judicial Review but the Supreme Court also encountered some problems. During the first year
of the inception of article 32, the Court levelled a deathblow to personal liberty, ignoring the
procedural protections contemplated by and crystallized in the Constitution through judicial
review. Adopting an uncomfortably restricted view of "personal liberty," the Court ruled that
a procedure duly enacted by the legislature was sufficient to deprive a citizen of his liberty.
Significantly, the procedure did not have to conform to the principles of natural justice, and it
did not have to fulfil the tests of other fundamental rights.
Despite the Court's prior attempts to place a check on Parliament's unbridled power, the
opening two and a half decades of the Republic were the worst periods for constitutional
development in India. Indeed, neither of the two important institutions of governance-the
Parliament and the Judiciary-made any enduring contributions toward strengthening
constitutionalism in the country.
Then came the time when Indira Gandhi imposed emergency in the nation and it was
in a way the second freedom of struggle. The only judge (Mr. H.R. Khanna) who gave a
descending opinion had to face consequences which were not favourable for him.
The Supreme Court gloriously expanded the right to life and personal liberty to include
the right to travel abroad in Maneka Gandhi v. Union of India-its historic post-Emergency
decision. The Court articulated that Part III of the Constitution was designed to create
conditions in which every human could develop his personality to the fullest extent.
Additionally, in Rudul Shah v. State of Bihar, a trailblazing decision in 1983, the Supreme

6
Ram Jethmalani and ors. V. UOI and ors. (2011)8SCC1
7
Sube Singh vs. State of Haryana (2006)3SCC178

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Court recognized and punished the lawless behaviour of state officials. In Rudul Shah, the
Court awarded compensation to the petitioner for the loss of his limbs during his traumatic
police custody. In 1993 the Court reiterated that the right to receive compensation for the
unlawful deprivation of Article 21 was a fundamental right of every citizen.
Similar cases made the judiciary capable of being free from the state intervention and
reviewing the matters. The Procedural due process, which was crystallized in the Constitution
and received a deathblow in A.K. Gopalan case, was finally resurrected twenty-eight years
after the commencement of the Constitution. In Olga Tellis v. Bombay Municipal Corporation,
the court gave a new dimension to Article 21 by halting all the evictions and demolitions on
the pavements for four years as the petitioner said that the pavement served as the home as well
as workplace to the dwellers.
Further the case of Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh
ushered in this trend. In this case, the Court ordered the closure of certain limestone quarries
in the Himalayan range of Mussoorie Hill on the grounds that their operations were upsetting
India's ecological balance and harming the environment. Although the Court did not explicitly
refer to Article 21 in its judgment, it is clear that the Court entertained the environmental
complaints under Article 32-guided by Article 48A, the aforementioned Part IV Directive
Principle as involving a violation of Article 21’s right to life.
Aforesaid were some of the landmark cases through which Article 32 was used.
Fundamental rights related to judiciary, hence, had two phases i.e. pre-emergency and post-
emergency. The major development and strengthening of judiciary took place after the
emergency.

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Analysis and Conclusion
Thus, we can say that it is not enough to have a constitution that guarantees an
impressive array of fundamental rights. Ultimately it is the judiciary that pours meaning into
the letter of the law or constrains the breadth of its reach. While examining the post-Emergency
era in India, it is important to examine whether courts have overstepped the supposedly original
intention of the framers when articulating rights not expressly mentioned in the Constitution.
It may seem that the Court may have surpassed the founding fathers' intent. Nonetheless, its
construction of Part III of the Constitution has remained within constitutional parameters and
incorporated the inherent spirit of the Constitution that underscores social justice and human
dignity.
In articulating new rights and coming to the succour of the poor and oppressed, the
Court has made bold and impressive forays into uncharted areas of social justice.
Today, many of the rights recognized in international instruments-including the right
to travel abroad, privacy, freedom from torture, right to a speedy trial, and the right to a
wholesome environment-have become a proud part of Part III of India's Constitution solely
because of perceptive judicial exegesis.
Any kind of infringement or violation of fundamental rights may be addressed by the
Supreme Court by means of filing a writ petition or Public Interest Litigation. The judiciary
has the power to review any law and quash it if found derogatory of the fundamental rights
provided in the constitution.

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References and Bibliography

 Study Material, National Law Institute University.

 The Constitution of India; V.N. Shukla

 Bare Act, Constitution of India; All India Reporter

 www.wikipedia.org

 www.indiankanoon.org

 www.legalservicesindia.com

 www.acedmia.edu

 www.lawnotes.in

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