AKNOWLEDGEMENT

With profound sentiments of gratitude,I acknowledge the

guidance, suggestion and encouragement given by my guide Ms.
Neha Garg because of whom I was able to complete the task of
writing this seminar course report work successfully.

I am also grateful to other faculty members for their timely

guidance and relevant knowledge regarding various aspects
relating to topic. Also, I will fail in my duty if I don’t thanks the
Library staff of Sharda University, who have warmly facilitated the
task by providing various books& journals, leading to successful
completion of the task.

Regards
Scholar’s Name: Vishal Kumar Yadav
Class: B.tech+LLB
Batch:2015-2021
SOL, Sharda university.
 CERTIFICATE
This is to certify that this work incorporated in
this SEMINAR COURSE REPORT on the topic “An
LAW ,CONSTITUTIONALISM AND CULTURERAL
DIFFERENCE” submitted by Mr. Vishal Kumar
Yadav of B.tech+LLB Batch 2015-2021 is bonafide
work of him & was carried out sincerely &
honestly under my guidance & supervision.

Name. Neha Garg

Supervisor
Assistant Professor
Sharda University
Greater Noida
INTRODUCTION .............................................. 415
I. INDIA'S FIRST HOUR OF FREEDOM ..................... 420
A. FRAMING THE CONSTITUTION .............................. 420
B. THE ORIGINAL CONTENT OF FUNDAMENTAL RIGHTS ....... 427
1. Right to Equality ...................................... 428
2. Right to Fundamental Freedoms ...................... 430
3. Procedural Rights .................................... 430
4. Right Against Exploitation ............................ 431
5. Right to Freedom of Religion .......................... 432
6. Cultural and Educational Rights ...................... 433
7. Right to Property ..................................... 433
8. Right to Constitutional Remedies ...................... 433
C. THE STORY OF THE DUE PROCESS CLAUSE ................. 434

* Vijayashri Sripati, LL.B., Osmania University, India, 1989; Rotary International

Graduate Scholar (1990-91); LL.M., American University Washington
College of Law, May 1991; British Chevening Scholar (1995-96); M.A. (International
Law & Politics) University of Hull, England, January 1997; Recipient of the
Josephine Onoh Memorial Prize in Public International Law awarded by the University
of Hull, England, January 1997.
I dedicate this essay to my father, Mr. Rammohan Rao Sripati, who has nurtured
my love for learning and writing since childhood. I also wish to express my deeply
felt gratitude to Dr. Mark Gibney, Professor, Department of Political Science, University
of North Carolina, Asheville; Mr. Gary McCann, Director, Law Library,
American University Washington College of Law, Washington, D.C.; Ms. Thilaka
Kiruparajah, Undergraduate Student, University of Toronto, Canada; Mr. Richmond
A. Bonney, Doctoral Student, University of Hull, England; and my sister,
Mrs. Bhanushri Castelino, for assisting me greatly in collecting research material
for this article. A special thanks is due to Mr. Stefan Meisner and his staff for their
excellent editorial assistance.
414 AM. U. INT'LL. REV. [14:413
D. THE RETURN OF DUE PROCESS-INFUSION OF ITS
SUBSTANCE INTO THE CONSTITUTION ...................... 436
II. JUDICIAL PROTECTION OF FUNDAMENTAL RIGHTS. 439
A. EXPANDING CONTENT OF FUNDAMENTAL RIGHTS .......... 442
B. SCOPE OF THE FUNDAMENTAL RIGHTS ..................... 447
C . A NALYSIS .................................. .............. 448
D. REMEDIES FOR VIOLATIONS OF RIGHTS ..................... 452
E. INNOVATIVE & AFFIRMATIVE REMEDIES ................... 453
III. INDIAN CONSTITUTIONALISM AND INTERNATIONAL
HUMAN RIGHTS ............................. 459
A. THE INDIAN CONSTITUTION AND THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS ............... 461
B. THE EMERGENCY PROVISIONS IN THE INDIAN
CONSTITUTION AND THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS .............................. 464
C. THE INDIAN CONSTITUTION AND THE INTERNATIONAL
COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL
R IGH TS .................................................... 466
D. INTERNATIONAL HUMAN RIGHTS LAW HAS INFORMED
INDIAN CONSTITUTIONAL JURISPRUDENCE ................. 468
E. USE OF CUSTOMARY INTERNATIONAL LAW ................. 469
IV. SUPREMACY OF THE CONSTITUTION .................. 471
A. SHADES OF FASCISM-THE CURRENT PROPOSALS FOR
AMENDING THE CONSTITUTION ............................ 475
B. UPHOLDING CONSTITUTIONAL SUPREMACY ................ 478
C. Is THE "BASIC STRUCTURE" DOCTRINE THE LAST HOPE? ... 480
V. HOW CAN CONSTITUTIONALISM BE STRENGTHENED
IN IN DIA ? ........................................... 481
A. THE JUDICIARY AND THE SOCIAL ACTION LITIGATION
M OVEM ENT ............................................... 481
B. CAMPAIGN TO ERADICATE ILLITERACY ..................... 485
C. NATIONAL SECURITY AND FUNDAMENTAL RIGHTS ......... 487
D. A THIRD FREEDOM STRUGGLE? .... . . . . . . . . . . . . . . . . . . . . . . . . 488
1. Case for a Robust Civil Society ........................ 489
2. Bold Action Needed ................................... 490
3. Secularism in Danger: Bharatiya Janata Party and
the Hindutva Agenda .................................. 491
4. Battle Against Hindutva ............................... 494
CON CLU SION ................................................. 495
CONSTITUTIONALISM AND RIGHTS hN INDIA
INTRODUCTION
Fifty years ago, fundamental political changes took place around
the world. World War II ended,' as well as the dismantling of the
monumental British Empire, which gave birth to many independent
states. 2 Vanquished nations-Germany, Italy, and Japan-and newly
independent former colonies in Asia and Africa embarked on the difficult
task of establishing "rule of law"' governments. Western style
constitutions sensitive to human rights and embodying judicial review
began to appear in Japan (1947)," Italy (1948),5 Germany
(1949),6 and India (1950). 7 The Holocaust and other infamous bru-

1. See ERIK GOLDSTEIN, WAR AND PEACE TREATIES 1816-1991, at 69 (1992)

(stating that the final conflict of the Second World War, the Pacific War of 1941-
45, concluded with Japan's surrender on August 10, 1945).
2. See JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW
404 (1979) (discussing the United Kingdom's loss since 1920 of a massive empire).
3. See generally Richard H. Fallon, Jr., "The Rule of Law" as a Concept in
Constitutional Discourse, 97 COLUM. L. REV. 1 (1997) (providing an extensive
discussion of the "Rule of Law Ideal," which is generally contrasted with the "Rule
of Men"). Essentially, under a "Rule of Law" government, the law is "fixed and
publically known in advance of application, so that those applying the law, as
much as those to whom it is applied can be bound by it." Id. at 3.
4. See T.S.Y. Lee & Osamu Nishi, Japan, in IX CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD 1, 2-3 (Albert P. Blaustein & Gisbert H. Flanz eds.,
1990) (stating that the Constitution of Japan came into effect in 1947, and that respect
for human rights and due process are fundamental principles of the Constitution).
5. See Gisbert H. Flanz, Italy, in IX CONSTITUTIONS OF THE COUNTRIES OF
THE WORLD, supra note 4, at 1, 15-16 (stating that the post-World War 1I Italian
Constitution came into effect in 1948, and that creation of a Constitutional Court
and protection of fundamental rights were components of the Constitution).
6. See Robert Spencer, The Origins of the Federal Republic of Germany,
1944-1949, in POLITICS AND GOVERNMENT IN GERMANY, 1944-1994: BASIC
DOCUMENTS 1, 5 (Carl Christoph Schweitzer et al. eds., 1995) (stating that the
German Constitution, or Basic Law, was adopted in 1949); Eckart Klein, The Concept
of the Basic Law, in MAIN PRINCIPLES OF THE GERMAN BASIC LAW 15, 16
(Christian Starck ed., 1983) (stating that individual liberty is at the core of the Basic
Law); Gunnar Folke Schuppert, The Constituent Power, in MIAIN PRINCIPLES
OF THE GERMAN BASIC LAW 37, 51 (Christian Starck ed., 1983) (stating that "the
process of interpretation through the Federal Constitutional Court is of central importance
for the implementation and elucidation of the [German] Constitution.").
7. See Shri P.M. Bakishi, India, in VII CONSTITUTIONS OF THE COUNTRIES OF
1998] 415
AM. U. INT'L L. REV.
talities spurred nations to devise collective means of ensuring lasting
peace.' Certain nations formed the United Nations, and with it the
modem human rights movement.9 In 1948, during the third session of
the United Nations, the General Assembly adopted the Universal
Declaration of Human Rights ("Universal Declaration")' ° and projected
constitutionalism onto the world stage. The Universal Declaration
enunciates important human rights that were flagrantly violated
during the pre-war period. Most nations hoped that the
incorporation and gradual implementation of these fundamental
rights within the newly independent countries would serve as the
starting point for genuine constitutionalism in the world.
More recently, the transmuted and newly independent states of the
former Soviet Union wrote constitutions, adopted bills of rights, and
established judicial review." In Great Britain, a nation whose political
traditions lean toward parliamentary supremacy, there is a debate
on the need for a written constitution with a bill of rights. 2 In Europe
and Latin America and later the other parts of the world, constitutionalism
and judicial review have "proved to be one of the West's
most important exports."' 3 Indeed, the past fifty years represent an

THE WORLD i, v (Albert P. Blaustein & Gisbert H. Flanz eds., 1994) (stating that
the Constitution of India was enacted on January 26, 1950); INDIA CONST. pt. Ii,
reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra, at 1,
31 (enumerating fundamental rights); Id. pt. V, ch. IV (creating the Supreme Court
of India with authority over the laws of India).
8. See Hajo Holborn, Introduction to WAR AND PEACE AIMS OF THE UNITED
NATIONS: SEPTEMBER 1, 1939-DECEMBER 31, 1942 i, ix-xv (Louise W. Holborn
ed., 1943) (discussing the need for, and creation of, the United Nations during the
period 1939-1942).
9. See id. (delineating the aims of the United Nations, including, but not limited
to human rights).
10. Universal Declaration of Human Rights, G.A. Res. 71 U.N., U.N. Doc.
A/810 (1948).
11. See Henry H. Perritt, Jr. & Christopher J. Lhulier, Information Access
Rights Based on International Human Rights Law, 45 BUFF. L. REV. 899, 900
(1997) ("The effort to build the rule of law in former communist countries is supported
by the development of constitutionalism, implemented through independent
constitutional courts in the newly independent states.").
12. See Bruce Ackerman, The Rise of World Constitutionalim, 83 VA. L. REV.
771, 772 (1997) ("Even the British are debating the need for a new fangled written
constitution").
13. Id. at 781.
[14:413CONSTITUTIONALISM AND RIGHTS iN LVDI
extraordinary period for constitutionalism throughout the world.
This article focuses on the development ofconstitutionalism during
the last fifty years and recommends means for strengthening it in India
in the next century. January 26th, 2000, marks the fiftieth anniversary
of the Indian Constitution.'4 The Constitution-the National
Charter of Liberties-sets forth the fundamental rights of approximately
one billion people, reflecting an amazing kaleidoscope of
castes, religions, languages, and economic and social backgrounds.
The triumph of democracy in India and the survival of its Constitution
for fifty years are significant achievements. Yet, the continuing
success of constitutionalism in India has far-reaching implications in
the future for international peace and security-particularly in Asia,
a region that has faced recent challenges to democracy.
Furthermore, India can serve as a laboratory for testing difficult
questions of constitutional law arising in the United States since India
purposefully incorporated the quintessential aspects of United
States constitutionalism.'5 These aspects include the concepts of a
written constitution, court-policed constitutional liberties,'" and constitutional
supremacy. With regard to human rights, the impact of the
United States Constitution was "massive" and the "borrowings direct."

17 Further, India's founding fathers eagerly emulated the

14. India gained independence from British rule on August 15, 1947. See Sharad
D. Abhyankar, India, in VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1 (providing an overview of the history of India). On attaining
independence India was partitioned into two sovereign nations: India and
Pakistan. See Vijayashri Sripati, Human Rights in India: Fifly Years After Independence,
26 DENV. J. INT'L L. & POL. 93, 96 n.17 (1997) (noting further that
"[w]hat ensued was a panicky exodus of Muslims fleeing to Pakistan and Hindus
fleeing to India and a communal carnage in which about a million lives were
lost.").
15. See TRIMBAK KRISHNA TOPE, THE CONSTITUTION OF INDIA 37 (1971) (discussing
the similarities and differences in the United States and Indian constitutions).
16. See Soli Sorabjee, Equality in India and the United States, in
CONSTITUTIONALISM AND RIGHTS 94, 96-97 (Louis Henkin & Albert J. Rosenthal
eds., 1990).
17. Andrzej Rapaczynski, Bibliographical Essay: The I!fluence of United
States Constitutionalism Abroad, in CONSTITUTIONALISM AND RIGHTS, supra note
16, at 447-49.
1998]
AM. U. INT'L L. REV.
"American judicial institution and its constitutional function" 8 since
these features were perceived to contribute significantly to the
achievement of a freer and fairer society. India is, in this sense, a
"constitutional offspring" of the United States.19 The rise of world
constitutionalism, however, has failed to draw the attention of scholars,
lawyers, and judges in North America. ° Indeed, these groups
often ignore the constitutional processes of foreign countries, despite
the potential benefits of such inquiry. Consequently, this article suggests
that the United States and other countries can learn from the
experiences-past and present-of Indian constitutionalism.
Essentially, this article discusses three strands of Indian constitutional
thought. They are: 1) the emphasis on fundamental rights; 2)
the protection of fundamental rights by a judiciary vested with the
power of judicial review; and (3) the supremacy of the Constitution.
The last five decades are examined in terms of these three themes,
emphasizing processes and trends rather than events.
Overall, this article comprises five parts. Part I examines the
framing of the Indian Constitution and its fundamental rights provisions.
Part II deals with the first two themes of this article-fundamental
rights and fundamental rights' protection by the Judiciary.
Specifically, this section explores the Supreme Court's exercise of
judicial review since 1950, and analyzes the steady expansion of
fundamental rights and novel procedural innovations that the Court
has introduced under the auspices of Social Action Litigation
("SAL") or Public Interest Litigation ("PIL") beginning in the late
1970s.
Part III covers Indian constitutionalism and international human
rights. Both the Indian Constitution and the International Bill of
Rights draw heavily from the United States Constitution and its Bill
of Rights. This section probes the similarities and differences between
the human rights provisions in the Indian Constitution, and the

18. Louis Henkin, Introduction: The United States Constitution Abroad, in

CONSTITUTIONALISM AND RIGHTS, supra note 16, at 15.
19. See Ackerman, supra note 12, at 771, 772 n.4 (quoting United States v.
Then, 56 F.3d 464, 469 (2d Cir. 1995)) (stating countries that have adopted judicial
review are 'constitutional offspring[s]' of the United States).
20. See id. at 772-73 (discussing American scholars, constitutional lawyers,
and American judges' inward view of constitutional law).
418 [14:413
CONSTITUTIONALISM AND RIGHTS I INDIA41
International Covenant on Civil and Political Rights ("ICCPR")2' and
the International Covenant on Economic, Social, and Cultural Rights
("ICESCR").2 Part III also analyzes the positive influence of international
developments on Indian constitutional jurisprudence. Finally,
this section argues that Indian courts must continue to respect
international human rights norms while interpreting constitutional
provisions in order to satisfy India's constitutional mandate "to foster
respect for international law and treaty obligations."'
Part IV discusses the supremacy of the Constitution in India and
part V suggests ways that India can maintain and strengthen the
goals and precepts of the 1950 Constitution of India, which are
threatened by the reigning government. Presently, a coalition government
headed by the Bharatiya Janata Party ("BJP") governs India.
The BJP is a political party that owes allegiance to a Hindu fundamentalist
organization, Rashtriya Swayam Sevak Sangh ("RSSS").4
The RSSS's influence is penetrating the various branches of the Indian
government and severely imperiling Indian constitutional tenets
such as parliamentary democracy, secularism, freedom of speech and
expression, women's rights, equality, and social justice.!
The BJP government has called for a review of the Constitution
and proposed three controversial changes. Since 1950, the successive
governments of India have amended the constitution an extraordinary
number of times and the document has yet to emerge as an "all pow-

21. International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N.
GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967).
22. International Covenant on Economic, Social and Cultural Rights, G.A.
Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1967).
23. See INDIA CONST. pt. IV, art. 51, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 80.
24. See Bipan Chandra, Jan Sangh: The BJP's Predecessor, HINDU, May 11.
1998, at 10 (tracing the history of the Bharatiya Janata Party ("BJP")). BJP means
"The Indian People's Party." See id. In February 1998. the BJP captured merely 25
percent of the vote in India's general elections. See id. BJP is the political manifestation
of Rashtriya Swayam Sevak Sangh ("RSSS")h which is a combined religious
and cultural organization founded by M.S. Golwalker in 1925. See it.
RSSS was banned in 1993 after it engineered the destruction of a mosque at Ayodhya.
See id.
25. See id. (noting that the RSSS retains "tight ideological and organizational
control over the BJP"). Many fear RSSS's influence since its organizational goal is
to impose Hinduism as the national religion of India. See id.
1998] 419
AM. U. INT'L L. REV
erful symbol of national identity and democratic commitment."26
Therefore, part IV considers the theme of constitutional supremacy
against the history of the amendment process, focusing on the BJP
government's proposals for change. The section ultimately concludes
that there is no need to modify the Constitution. Instead, there is a
need for leaders of integrity to guide and reinvigorate the existing institutions
of governance.
Part V specifically provides recommendations to the government
and citizens of India for guaranteeing true democracy and liberty in
the country. It is important to remember that the Indian Constitution
stood sadly suspended for two years, June 1975 through March 1977,
during the phony Emergency declared by the Indira Ghandi government.
27 During this period, the government suspended civil liberties,
political leaders were detained without trial, and there were severe
restrictions on the freedom of the press.28 Fortunately, Indians waged
the second non-militant freedom struggle and restored democracy.
Today, on the eve of the fiftieth anniversary of the Republic, although
there is no emergency in force, the BJP's actions and policies,
however, point to a distant thunder. Consequently, this article
urges people in the subcontinent to be vigilant and recognize the
subtle and severe threats that the BJP poses to the nation. Indians
must begin to wage a third freedom struggle if democracy, liberty,
and constitutionalism in general, are to be truly alive in India.
I. INDIA'S FIRST HOUR OF FREEDOM
A. FRAMING THE CONSTITUTION
December 9, 1946 marked India's first hour of freedom. On this
day the Constituent Assembly convened to embark on the awesome
endeavor of framing a constitution that was acceptable to all sections

26. See Ackerman, supra note 12, at 783.

27. See Worst Legacy of Emergency Persists, HINDU, June 24, 1998 (discussing
Indira Gandhi's nineteen-month Emergency as the period when India "ceased
to be a democracy"); see also infra Part III.B (discussing the emergency provisions
of India's constitution).
28. See Sripati, supra note 14, at 107 n.105 (stating that the "national press was
gagged and civil liberties were drastically curtailed").
420 [14:413
CONSTITUTIONALISM AND RIGHTS I INDIA
of free India.2 9 As World War II progressed, India's freedom fighters
carried on their relentless struggle for puma swaraj-total freedom-
in the face of British intransigence!" In 1942, the Quit India
Movement emerged and slogans of "Quit India"-the daring declaration
coined by Mahatma Gandhi-echoed all over India." In the
aftermath of the war and with a change of the government in Great
Britain, the political climate became more conducive to India's demand
for freedom. Ultimately, British intransigence yielded and the
new labor government created a Constituent Assembly for India in
the Cabinet Mission Plan of 1946.'2
The Constituent Assembly convened for its inaugural session in
Delhi on December 9, 1946. Dr. Satchinanda Sinha, a jurist and the
Assembly's oldest member, served as the provisional president of the
Constituent Assembly.33 In his brilliant inaugural speech, Dr. Sinha
urged the members to follow the approach of America's founding
fathers in Philadelphia, namely one of agreement and compromise."
He invited the members to carefully study the provisions of the

29. See Maureen B. Callahan, Cultural Relativism and the Interpretation oJf
Constitutional Texts, 30 WILLAMETTE L. REv. 609, 611 (1994) (referring to the
Constituent Assembly Debates of Dec. 9, 1946).
30. See VIDYA DHAR MAHAJAN & R.R. SEHTI, CONSTITUTIONAL HISTORY OF
INDIA 385 (3d ed. 1956) (providing freedom fighters arguments for ending British
rule "on which depend the future of the war and the success of freedom and democracy").
See generally PANCHANAND MIsRA, THE MAKING OF INDIA'S
REPUBLIC: SOME ASPECTS OF INDIA'S CONSTITUTION IN THE MAKING 23 (1966)
(discussing the political, economic, and social origins of the Indian Constitution).
31. See MAHAJAN & SEHTI, supra note 30, at 384-89 (describing the "Quit India"
movement). The "Quit India" resolution, adopted by the All-India Congress
Committee reads in part as follows:
The Committee approves of and endorses that... the immediate ending of British rule
in India is an urgent necessity, both for the sake of India and for the success of the
cause of the United Nations. The continuation of that rule is degrading and enfeebling
India and making her progressively less capable of defending herself and of contributing
to the cause of world freedom.
Id.
32. See MISRA, supra note 30, at 4 (stating that a reluctant British government
conceded to India's demand for a sovereign Constituent Assembly).
33. See Callahan, supra note 29, at 611 (describing the Constituent Assembly).
34. See id. (noting that the Constituent Assembly would concentrate on the
United States Constitution more heavily than on any other constitution).
1998]AM. U. INT' L. REV.
United States Constitution "not necessarily for wholesale adoption
but for the judicious adaptation of its provisions to the necessities
and requirements of your own country [India] with such modifications
as may be necessary owing to the peculiar conditions of our
[India's] social, political and economic life." In drafting the Constitution,
the framers drew ideas freely from foreign constitutions,
but as the Assembly Chairman's remarks reflect, the United States
Constitution was undoubtedly the principal model. India's first Prime
Minister, Jawaharlal Nehru, acknowledged this fact in an address to
the United States Congress by announcing, "we have been greatly influenced
by your own constitution., 6
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.37 The Constitution's evocative preamble 8 vests all sovereignty
in the people and thus bears a remarkable resemblance to
that of the Unites States Constitution."' From the very beginning,
however, the framers opposed adopting the American presidential
System.40 The Indian Constitution therefore embodies the blueprint of

35. See VIDYA MAHAJAN & R.R. SEHTI, CONSTITUTIONAL HISTORY OF INDIA
122 (1988).
36. See Sorabjee, supra note 16, at 96 (quoting Jawaharlal Nehru).
37. See ANUP CHAND KAPUR, CONSTITUTIONAL HISTORY OF INDIA 1765-1790,
at 476 (1970) (noting that the Indian Constitution originally consisted of 395 articles
and 9 schedules and its text covered 254 pages).
38. See INDIA CONST. preamble, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 21. The original preamble reads as
follows:
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR AND DEMOCRATIC REPUBLIC and to
secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of
thought, expression, belief faith and worship; EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the individual
and the unity and the integrity of the Nation; IN OUR CONSTITUENT
ASSEMBLY this twenty-sixth day of November 19, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Id.
39. See U.S. CONST. preamble.
40. See Callahan, supra note 29, at 611 (stating that "Indian acceptance of a
centralized parliamentary form of government was 'nearly universal."').
[14:413CONSTITUTIONALISM AND RIGHTS IN INDIA
a Westminster parliamentary-style government."' India is thus indebted
to Great Britain, among other things, for its basic political
structure. The framers were also disinclined to adopt the American
model of federalism, which entails a weak federal government.' The
Indian Constitution is a federal constitution with a unitary bias. It
establishes a "Union" of states with a strong central government. The
Constituent Assembly structured the Constitution to be the highest
law of the land, supreme over all other laws including the acts of -41
legislature. Parliament therefore could not amend the Constitution
by ordinary legislation, but had to follow a difficult amending process
of constitutional character.' This aspect renders the constitution
rigid in some respects and flexible in some others.'
The framers etched into this supreme law of the land an impressive
array of fundamental rights-basic human rights-that constitute
the conscience of the Constitution.*6 The framers also vested the
Supreme Court with the power to declare the law," and to quash as

41. See KAPUJR, supra note 37, at 476 (discussing the parliamentary form of
government in India).
42. See P.K. Tripathi, Perspectives on the American Constitutional Influence
on the Constitution of India, in CONSTITUTIONALISM IN ASIA, ASIAN VIEWS ON
AMERICAN INFLUENCE, 56, 63-72 (Lawrence W. Beer ed., 1979) (describing the
deliberations of the Constituent Assembly concerning the Unites States form of
government).
43. See KAPUR, supra note 37, at 501.
44. See Eli Katz, On Amending Constitutions: The Legality and Legitimacy of
Constitutional Entrenchment, 29 COLUM. J.L. & SOC. PROBS. 251, 257 n.21 (1996)
("The Indian Constitution... allows for amendments by a simple majority of Parliament,
but the process is made more difficult by the Indian Supreme Court's interpretation
of limits on the amending power of Parliament."); see also INDIA
CONST. pt. XX, art. 368, reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF
THE WORLD, supra note 7, at 1, 247 (delineating the process Parliament must follow
to amend the Constitution).
45. See Katz, supra note 44, at 270 (stating that the "Indian Constitution strikes
a balance between the British 'flexibility' and American rigidity" in terms of its
amendability).
46. See INDIA CONST. pt. III, arts. 12-35, reprinted in VII CONSTITUrIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 31-75 (providing Indians' fundamental
rights).
47. See id. pt. IV, ch. IV, art. 141 ("The law declared by the Supreme Court
shall be binding on all courts within the territory of India."). Thus, the Supreme
Court heads the unified judicial system in India and all laws it declares are binding
1998]
AM. U. INT'L L. REV.
unconstitutional any law or order that transgresses any fundamental
right, a power otherwise known as judicial review.48 Significantly,
access to the apex court to issue writs enforcing fundamental rights is
itself a fundamental right.49 Even more notably, the framers deemed
the Court to be part of the State. The Court was envisaged to actively
participate in the transformation of India from a feudal society into
that of an egalitarian one, within the parameters of the Constitution.'
The Judiciary was to be an arm of the "social revolution" upholding
the equality that Indians had longed for during colonial days but remained
elusive.'
One of the most distinctive features of the Indian Constitution is
the inclusion of social justice provisions, which the United States
Constitution does not expressly contain. Part IV of the Indian Constitution12
enumerates certain Directive Principles of State Policy, reon

all courts in the Indian Union. See id. The highest courts in each of the states
comprising the Indian Union are the High Courts. See id. pt. VI, ch. V, art. 214
("There shall be a High Court for each state."). Appeals from the High Courts are
brought to the Supreme Court pursuant to articles 132, 133, and 134 of the Indian
Constitution. See id. pt. V, ch. IV, art. 132 (providing the text of the Constitution
concerning appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases); id. art. 133 (providing the text of the Constitution concerning appellate
jurisdiction of Supreme Court from High Courts in regard to civil matters);
id. art. 134 (providing the text of the Constitution concerning appellate jurisdiction
of Supreme Court from High Courts in regard to criminal matters).
48. See INDIA CONST. pt. III, art. 13 reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 33-34 (discussing laws that are inconsistent
with or in derogation of Indians' fundamental rights) Article 13 states:
(I) All laws in force on the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
Id.
49. See id. art. 32 (ensuring the right to access the Supreme Court to enforce
fundamental rights).
50. See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A
NATION 167 (1966) (stating that the Supreme Court functions was to protect the
social revolution).
51. See id.
52. See INDIA CONST. pt. IV, reprinted in VII CONSTITUTIONS OF THE
424 [14:413CONSTITUTIONALISAI AND RIGHTS IN INDi4
flecting a concept from the Constitution of Eire." These principles,
though not judicially enforceable,4 are nevertheless fundamental in
the governance of the country. Specifically, the Principles articulate
the socio-economic responsibility of the State towards its citizens by
securing for all citizens just and humane conditions of work and
maternity relief," compulsory education for all children up to the age
of fourteen, 56 free legal services to all indigent persons,5' and the establishment
of sound international relations." Basically, these provisions
uphold the spirit of the Indian Constitution as a "Social Document"
that embodies twentieth century socio-economic goals."'
Another distinctive feature and basic tenet of the Indian Constitution
is secularism. Indeed, secularism is one of the pillars upon which India's
democratic political edifice is mounted." The Indian version of
COUNTRIES OF THE WORLD, supra note 7, at 1. 76-80 (containing the Directive
Principles of State Policy).

53. See KAPUR, supra note 31, at 463 (stating that the ideological portions of
the Indian Constitution were drawn from the Constitution of the United States and
the Constitution of Eire).
54. See INDIA CONST. pt. IV, art. 37, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7. at 1, 76 (stating "[tihe provisions contained
in this Part shall not be enforceable by any court, but the principles laid
down are nevertheless fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making law.").
55. Id. art. 42 ("The State shall make provision for securing just and humane
conditions of work and for maternity relief.").
56. Id. art. 45 ("The State shall endeavour to provide, within a period of ten
years from the commencement of this constitution, for free and compulsory education
for all children until they complete the age of fourteen years.").
57. Id. art. 39A ("The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislation or schemes in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities.").
58. See id. art. 51 ("The State shall endeavour to (a) promote international
peace and security; (b) maintain just and honourable relations between nations; (c)
foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and (d) encourage settlement of international disputes
by arbitration.").
59. See Callahan, supra note 29, at 630 (stating that "social and economic reform
were of primary importance to the Indian framers").
60. See KAPUR, supra note 37, at 502 (stating that the Indian Constitution
guarantees freedom from religious and communal prejudice).
1998]
AM. U. INT'L L. REV.
secularism, however, differs from the liberal democratic model because
it is not characterized by the separation of state and religion.' Rather,
constitutional discourse on secularism focuses on the following three
principles: 1) freedom of religion;62 2) citizenship and the right to
equality63 and non-discrimination;6 and 3) toleration based on the principle
of equal respect for all religions. Some scholars have opined that
India does not have all the features of a secular state.66 Although the
Constitution permits state intervention in religious affairs, it upholds
the principle of an "absence of a legal connection between the state and
a particular religion.6' 7 India's commitment to the concept of secular-

61. See id. (noting that the Indian Constitution does not contain a provision
prohibiting political activity by religious groups).
62. See INDIA CONST. pt. III, art. 25, reprinted in VII CONSTITUTIONS OF TIlE
COUNTRIES OF THE WORLD, supra note 7, at 1, 61-62 (guaranteeing "[fireedom of
conscience and free profession, practice and propagation of religion"); Id. art. 26
(guaranteeing Indians "[f]reedom to manage religious affairs").
63. See INDIA CONST. pt. III, art. 14, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 35 ("The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory.").
64. See id. art. 15 (guaranteeing "[p]rohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.").
65. See id. art. 25 (entitling citizens of all religions to equal rights). The notion
of secularism as "equal respect for all religions" owes its origin to the father of the
Nation, Mahatma Gandhi, who was averse to the separation of religion and politics.
Indeed, in bringing about the greatest social mobilization in world history in
the twentieth century, Gandhi also relied upon a "political idiom derived from the
discourse of devotional theism." Ravinder Kumar, Political Actor as Social
Prophet, FRONTLINE, Mar. 6, 1998, at 72, 74. His message for political freedom
therefore struck a responsive chord in the minds of thousands of Indians, cutting
across different religious communities in British India-Hindus, Muslims, Christians,
and Sikhs. See id.
Gandhi accordingly, envisaged a polity based on the Saarva Dharna Sambhava
principle-equal respect for all religions. Although the Karachi resolution of 1931
called for state neutrality in regard to all religions, it was Gandhi's thinking that
dominated the constitutional discourse during the making of the constitution and
thereafter. By contrast, Jawaharlal Nehru, India's first Prime Minister, advocated a
strong separation of the state and politics; and, in fact, confessed that building a
secular state in a religious society had been one of his toughest tasks as Prime
Minister. See generally id. at 72-75.
66. See, e.g., DONALD EUGENE SMITH, INDIA AS A SECULAR STATE 133 (1964)
(discussing secularism in India).
67. Id.
426 [14:413
CONSTITUTIONALISM. AND RIGHTS IINDIA 7.
ism is further buttressed by the constitutional prohibitions on religious
instruction in state schools,"' taxation in support of any religion,"' and
also by the fundamental duty of all citizens to "promote harmony and
the spirit of common brotherhood amongst all the people of India transcending
religious . . . diversities.'" These provisions reflect the
founding fathers' unwavering commitment to establishing a democratic
India, free of all bigotry.
The Indian Constitution makes a striking departure from its
American model by permitting preventive detention and providing
for the declaration of an Emergency. The Constitution not only mandates
preventive detention even during peacetime,"' but also orders
the suspension of certain non-derogable fundamental rights during an 72
emergency. The Constitution tolerates such intrusions into individual
liberty mostly because of the peculiar socio-political milieu in
which the Constitution was drafted rather than the framers' insouciance
with individual liberties.
B. THE ORIGINAL CONTENT OF FUNDAMENTAL RIGHTS
Did the idea of guaranteeing human rights to Indians sprout in the
minds of the founding fathers on the eve of independence? No. Indeed,
a great patriot, Lokmanya B. Tilak, declared in 1895 to the
British government, "Swaraj mnera janma sidl adhikar hai. "' Of
greater note, unlike some of Britain's former colonies that rejected
the idea of an entrenched bill of rights in their constitutions," Indian

68. See INDIA CONST. pt. III, art. 28, cl. 1, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 64 (stating "[n]o religious instruction
shall be provided in any educational institution wholly maintained out of
state funds.").
69. See id. art. 27 (stating "[n]o person shall be compelled to pay any taxes, the
proceeds of which are specifically appropriated in payment or expenses for the
promotion or maintenance of any particular religion or religious denomination.").
70. Id. art. 51A (e).
71. See id. pt. III, art. 22, cl. 4-7.
72. See id. pt. XVIII, arts. 352-60 (allowing for suspension of rights guaranteed
by the Constitution during an emergency); infra Part III.B (providing a detailed
analysis of the suspension of rights during an emergency).
73. Sripati, supra note 14, at 96 (translation: "freedom is my birthright and I
shall have it").
74. See Rapaczynski, supra note 17, at 447 n.205 (detailing former colonies'
1998] 427AM. U. INT'L L. REV.
political thought focused on the idea of constitutionalized fundamental
political rights as early as 1928."5 Thus, when the members of
the Constituent Assembly convened to frame Part III of the Constitution,
they naturally had before them the United States Bill of
Rights. Thus, with respect to the Constitution's human rights provisions,
it was the "Potomac and not the Thames that fertilised the flow
of Yamuna.' ' 76 The idea of fundamental rights did draw on American
origins; in places, the phraseology of the Indian Constitution echoes
its American counterpart.77 Despite this influence, India's particular
history shaped the fundamental rights.
The Constitution guarantees a comprehensive array of fundamental
rights that are subject to certain explicit exceptions that do not
render them illusory. The range of human rights in Part III, Articles
14 through 32, is very wide. Some of these rights are available to
both citizens and aliens alike. The following sections briefly describes
the major categories of rights as they are commonly clustered
and discussed in India.
1. Right to Equality
Articles 14 through 18 deal with the right to equality. Article 14
confers "equality before the law" and "the equal protection of the
laws., 78 Article 15 is significant because it prohibits discrimination
on the grounds of race, caste, religion, creed, sex, or place of birth.7"

views on enumerating express rights in a bill of rights).

75. See Sorabjee, supra note 16, at 94 (noting that the Motilal Nehru Committee's
1928 "Declaration of Fundamental Rights," clearly reflects the influence of
the United States Constitution and its Bill of Rights). In response to the Secretary
of State for India, Lord Birkenhead's challenge to Indians to come up with a constitution,
India's freedom fighters drafted the Motilal Nehru Committee Report of
1928. See id.
76. Shamsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192, 2212.
77. Both the United States Constitution and the Indian Constitution guarantee
"equal protection of the laws." Compare INDIA CONST. pt. III, art. 14 ("The State
shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India."), with U.S. CONST. amend. XIV, sec. I ("No
state shall ... deny to any person within its jurisdiction the equal protection of the
laws.").
78. INDIA CONST. pt. III, art. 14, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 35.
79. See id. art. 15, cl. 1 ("The State shall not discriminate against any citizen on
428 [14:413
CONSTITUTIONALISM AND RIGHTS IN LVDIA
Also, it sanctions special provisions for women, children,"' and for
the advancement of members of scheduled castes and tribes and socially
and educationally backward classes of citizens." Article 16
guarantees equality of opportunity in matters of public employment."
Discrimination in matters of public employment in any form--such
as religion, sex, caste, and place of birth-is strictly prohibited." In
the past, persons at the lower levels of India's caste hierarchy suffered
and still suffer from untouchability."' Happily, the Indian Conthe
grounds only of religion, race, caste, sex, place of birth or any of them.").

80. See id. art. 15, cl. 3 ("Nothing in this article shall prevent the State from
making any special provision for women and children.").
81. See id. art. 15, cl. 4 ("Nothing in this article or in clause (2) of article 29
shall prevent the State from making any special provision for the advancement of
any socially and educationally backward class of citizens for the scheduled castes
and the scheduled tribes."). See generalli MARK GAL.NTER, COMPETING
EQUALITIES: LAW AND THE BACKWARD CLASSES OF INDIA (1984) (discussing the
Indian Constitution's attempts to redress centuries of historic repression of India's
underprivileged classes by including a constitutional scheme of compensatory discrimination);
E.J. Prior, Constitutional Fairness or Fraud on the Constitution?
Coipensatory Discrimination in India, 28 CASE W. RES. J. INT'L L. 63 (1996)
(describing India's compensatory discrimination program, an affirmative action
attempt to remedy past injustices suffered by those at the lower levels of the hierarchical
social order of the Hindu caste system).
82. See INDIA CONST. pt. III, art. 16, cl. 1, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 48 ("There shall be equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the State.").
83. See id. art. 16, cl. 2 ("No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of any employment or office under the State.").
84. See GALANTER, supra note 81, at 7-17 (discussing the concept of untouchability).
Untouchability is a form of caste-based discrimination practiced among
Hindus for centuries. See id. Mahatma Gandhi called untouchables Harijans,
meaning children of God, and strove relentlessly to bring them into the fold of
Hindu society. See id. at 37 (noting Gandhi's hopes for the eradication of the caste
system). Dr. B. R. Ambedkar, the Chairman of the Drafting Committee of the Indian
Constitution, who himself was born an untouchable, assisted in Gandhi's noble
effort. See id. at 29 n.34 (describing Ambedkar's origins as a member of the
lower caste Mahars). It was at Ambedkar's behest that the special provisions for
the advancement of scheduled caste members (harijans) and educationally backward
classes of citizens were written into the Constitution. See id.at 37, 39 (noting
Ambedkar's role as leading architect of the Indian Constitution and its provisions
on untouchables).
1998] 429
AM. U. INT'L L. REV.
stitution reflects sensitivity to this problem." In reaction against earlier
intolerance, Article 17 specifically abolishes untouchability and
outlaws its practice in any form. 6
2. Right to Fundamental Freedoms
Article 19 confers vital freedoms such as "freedom of speech and
expression," 7 freedom to "assemble peacefully and without arms,""
to "form associations or unions,"89 to move freely and to reside and
settle in any part of the country," and to practice any profession, occupation,
trade or business.' These rights are subject to "reasonable
restrictions" on specific grounds mentioned in the Constitution.9'
3. Procedural Rights
Impressive procedural rights are provided in Articles 20 through
22 of the Constitution of India, with Article 21 setting the tone: "No
person shall be deprived of life or personal liberty except according
to procedure established by law." 9' Article 20 provides certain crucial

85. See INDIA CONST. pt. III, arts. 14-15, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 35, 41 (referring to India's
backward classes and "untouchability").
86. See id. art. 17 (stating that "'[u]ntouchability' is abolished and its practice
in any form is forbidden... [t]he enforcement of any disability arising out of untouchabilty
shall be an offense punishable in accordance with law.").
87. Id. art. 19, cl. 1 (a).
88. Id. art. 19, cl. I (b).
89. Id. art. 19, cl. 1 (c).
90. See id. art. 19, cl. 1 (d) (stating that "[a]ll citizens shall have the right to
move freely throughout the territory of India").
91. See INDIA CONST. pt. III, art. 19, cl. I (g), reprinted in VII CONSTITUTIONS
OF THE COUNTRIES OF THE WORLD, supra note 7, at 1, 45 (stating that "[a]ll citizens
shall have the right to practice any profession, or to carry on any occupation,
trade or business").
92. See id. art. 19, cl. 1 (g), (2)-(6) (limiting fundamental freedoms on the basis
of state security, foreign relations, public order, decency, and morality).
93. Id. art. 21. See also infra Part I.C (recounting the story behind the absence
of a due process clause in the Indian Constitution). The advice of United States
Supreme Court justice Felix Frankfurter to visiting Constituent Assembly member
B.N. Rau was influential. See AUSTIN, supra note 50, at 103 (describing the Rau-
Frankfurter meeting in the United States).
[14:413
CONSTITUTIONALISM AND RIGHTS iv INDIA
safeguards in respect of conviction for offenses.' It guarantees freedom
from retroactive crimes,95 double jeopardy,' and selfincrimination.
97 Article 22 concerns access to the courts, counsel, and
a public trial.98 Essentially, this Article provides protection against
arrest and detention in certain cases." In case of arrest, a person has
the right to know the grounds of arrest, the right to counsel on arrest,
and the right to appear before a magistrate within "twenty-four
hours" of arrest' ° The Constitution specifically mandates magisterial
supervision in case of imprisonment for a period beyond "twentyfour
hours.''
4. Right Against Exploitation
Articles 23 and 24 of the Constitution evidence how deeply committed
the founding fathers were to creating a humane society in India.
Article 23 prohibits traffic in "human beings and begar and other
similar forms of forced labor,"'0 12 while Article 24 prohibits the employment
of children in factories, mines, and other hazardous work
situations.

94. See INDIA CONST. pt. III, art. 20, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 50.
95. See id. art. 20, cl. I ("No person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the act charged as
an offence").
96. See id. art. 20, cl. 2 ("No person shall be prosecuted and punished for the
same offence more than once.").
97. See id. art. 20, cl. 3 ("No person shall be compelled to be a witness against
himself.").
98. See id. pt. III, art. 22 (providing the extensive text of article 22).
99. See id. art. 22, cl. 1 (stating that "[n]o person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds for
such arrest nor shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.").
100. See INDIA CONST. pt. III, art. 22, cl. 1, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 58.
101. Id. art. 22, cl. 2.
102. Id. art. 23.
103. See id. art. 24 (stating that "[n]o child below the age of fourteen years shall
be employed to work in any factory or mine or engaged in any hazardous employment").
1998]
AM. U. INT'L L. REV.
5. Right to Freedom of Religion
Various facets of religious freedom rights are delineated in Articles
25 through 28 of the Constitution. Article 25 guarantees to all
persons freedom of conscience and the right freely to profess, practice,
and propagate their religion.' ° Interestingly, the State is vested
with far reaching powers to regulate this freedom not merely in its
secular aspects-in the interests of public order and morality""5-but
also to effect social reform and compel public Hindu temples to open
their doors to all classes of Hindus. '°6 Public order, morality, and
health are the only explicit restrictions on this right.' 7 Freedom to
manage religious affairs, which includes establishing and maintaining
institutions for religious and charitable purposes, is also guaranteed
to every religious denomination in the country.' Article 27
prohibits compelling any person to pay taxes for the promotion or
maintenance of a particular religion or denomination.' 9 This Article
embodies some principles underlying the establishment clause in the
United States Constitution."0 Religious instruction in educational institutions
wholly maintained by state funds is also constitutionally
prohibited in India."'

104. See id. art. 25 ("Subject to public order, morality and health and to other
provisions of this Part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practice, and propagate religion.").
105. See id. art. 25, cl. 2 (a) ("Nothing in this article shall effect the operation of
any existing law or prevent the State from making any law regulating or restricting
any economic, financial, political or other secular activity which may be associated
with religious practice.").
106. See INDIA CONST. pt. III, art. 25, cl. 2 (b), reprinted in VII CONSTITUTIONS
OF THE COUNTRIES OF THE WORLD, supra note 7, at 1, 61 ("Nothing in this article
shall affect the operation of any existing law or prevent the state from making any
law providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.").
107. See id. art. 25, cl. 1.
108. See id. art. 26, cl. 1 (a)-(d) ("Subject to public order, morality and health,
every religious denomination or any section thereof shall the right .... ).
109. See id. art. 27 ("No person shall be compelled to pay any taxes the proceeds
of which are specifically appropriated in payment of the expenses for the promotion
or maintenance of any particular religion or religious group.").
110. See U.S. CONST. amend. I.
111. See INDIA CONST. pt. III, art. 28, cl. 1, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 65.
432 [14:413
CONSTITUTIONALISM AND RIGHTS IN I.DL.4
6. Cultural and Educational Rights
India is a multi-ethnic and multi-religious nation reflecting a rich
diversity of castes, religions, languages, and cultures. In establishing
a secular state founded on the principle of equality, the founding fathers
were guided by the principle of enlightened accommodation of
diverse faiths and religions. Accordingly, the Constitution contained
special provisions protecting the interests of minorities. Any distinct
religious, cultural, and linguistic group enjoys the right to freely establish
and administer institutions to preserve their culture, language,
and script.'12 Where such institutions receive grants from the state,
they must comply with the constitutional ban on certain kinds of discrimination
in their admission policies."'
7. Right to Property
Originally the Constitution guaranteed the right to property.' 4 This
right, however, was deleted from the list of fundamental rights by the
44' Constitutional Amendment Act of 1978, in April 1979.
8. Right to Constitutional Remedies
All the above rights would be otiose in the absence of a right to
move the court for their enforcement. Happily, the Constitution
guarantees this crucial right in Article 32."" Any person-citizen and
alien alike-has the right to invoke the highest court's jurisdiction

112. See id. art. 29, cl. 1 (stating that -[a]ny section of the citizens residing in
the territory or any part thereof having a distinct language, script, or culture of its
own shall have the right to conserve the same.").
113. See id. art. 30 (providing the "right of minorities to establish and administer
educational institutions").
114. See id. art. 31 (stating that Parliament repealed the -[c]ompulsory acquisition
of property" provision in 1978). see also AUSTIN, supra note 50. at 89 (discussing
the property provisions in the draft constitution).
115. See AUSTIN, supra note 50, at 89: see also hifra notes 152-56 and accompanying
text (discussing the litigation and intense Parliament-Judiciary controversy
involving property rights, and the subsequent constitutional amendments that deleted
these rights from the list of fundamental rights).
116. See INDIA CONST. pt. III, art. 32, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1. 7 1.
1998] 433
AM. U. INT'L L. REV.
for the vindication of his or her constitutional rights."7 These human
rights provisions were written into the Constitution "with the hope
that one day the tree of true liberty would bloom in India."" 8
C. THE STORY OF THE DUE PROCESS CLAUSE
Despite the tremendous influence of the United States Bill of
Rights in framing the Indian Constitution's Part III provisions, the
absence of a due process clause is conspicuous. Why is this so?
Ironically, it was the advice of an American jurist, Felix Frankfurter,
that contributed to the demise of this clause in the Constitution.""
Under the inspiration of the United States Constitution, the framers
of the Indian Constitution included a due process clause modeled on
the Fifth Amendment to the United States Constitution when they set
out to draft Part III. Proposed Article 15 of the draft constitution read
as follows: "No person shall be deprived of life, liberty or property
without due process of law."'20 Given the feudalistic nature of Indian
society during British rule, however, many members were principally
concerned with how the land and land rights of the few could be
placed at the disposition of the many for the sake of social justice."'
Specifically, they feared that the guarantee of due process-the requirement
to prove that property sought to be expropriated was
meant for specific public use and the requirement of just compensation-
in the hands of a conservative judiciary would turn the protection
of property rights into an obstacle to the vigorous pursuit of social
justice in independent India.'22 The particular experience of the
United States Supreme Court with substantive due process in the

117. See id. (providing the right to petition the Indian Supreme Court for enforcement
of fundamental rights).
118. AUSTIN, supra note 50, at 108.
119. See id. at 103 (discussing the meeting of B.N. Rau and Felix Frankfurter
during Rau's 1947 visit to the United States).
120. See id. at 84-85 (providing the text of Article 15 of the draft constitution
and describing India's Constituent Assembly's initial treatment of the scope of due
process rights).
121. See id. at 101 (discussing the principle factors against the incorporation of a
due process clause in India).
122. See id. at 87, 99 (articulating the fears of various assembly members about
possible future conflicts between individual property rights and collective societal
rights).
434 [14:413
CONSTITUTIONALISM AND RIGHTS I.V IVDL4
early part of the century'2' and its invalidation of beneficial socioeconomic
legislation gave rise to fears among India's constitutional
committee members.12 For instance, B.N. Rau, the Constitutional
Advisor to the Assembly, warned members that the "[c]ourts manned
by an irremovable judiciary not so sensitive to public needs in the
social or economic sphere as the representatives of a periodically
elected legislature, will, in effect, have a veto on legislation exercisable
at any time and at the instance of any litigant."' Other members
voiced similar concerns. 26
It is no surprise that when the Constituent Assembly members began
discussing life and liberty under proposed Article 15, one doubt
persistently hovered over the assembly hall: Must property then be
grouped with the right to life and liberty? Must property be protected
by due process?' 27 Subsequently, Rau left on a trip to the United
States, where he sought the advice of eminent constitutional law professors
and jurists in framing India's Constitution. Justice Frankfurter
drew Rau's attention to the United States Supreme Court's
substantive interpretations of due process that resulted in the striking
down of beneficial socio-economic legislation.'2' How materially that
brief occasion with Frankfurter had affected Rau's understanding of
the dangers inherent in the substantive interpretations that could be
placed on the due process clause is clear in Rau's advice to his colleagues
on his return from the United States. He urged his colleagues
to drop the due process clause with regard to the property provision
in the draft constitution. 29 It is worth noting that Rau was concerned

123. See id. at 87 (discussing United States Supreme Court decisions of the early
part of the century).
124. See AUSTIN, supra note 50, at 87 & n. 12 (noting the invalidation of wages
and hours legislation in the United States by the Supreme Court on due process
grounds).
125. Id. at 87.
126. See id. at 88 (describing the debate between Assembly members Ambedkar,
Patel, and Paut).
127. See id. at 94 (detailing Assembly Members' specific procedural due process
concerns).
128. See id. at 87 & n.12 (discussing Frankfurter's suggestions to Rau).
129. See AUSTIN, supra note 50, at 103.
1998]
AM. U. INT'L L. REV.
only with excluding substantive due process, but not denying procedural
safeguards. 30
With the elimination of the word "property" from Article 15 of the
draft constitution, the due process safeguard now extended only to
the right to life and liberty.'3' This formulation also attracted opposition.
Alladi K. Aiyer, an influential Assembly member, pleaded vehemently
in favor of dropping the due process protection even with
regard to life and liberty.'32 He warned the members that the due process
clause would obstruct the adoption of preventive detention laws.
Although he viewed preventive detention laws as harsh measures, he
believed that they were the only panacea that could save the infant
nation from being engulfed by communal riots and social unrest.II
Gandhi's brutal assassination by a Hindu fundamentalist in 1948
nourished serious concerns among the members about the possible
excesses of anti-social elements, which furthered Aiyer's argument.'
4 Finally, the committee concluded that it was worth placing
citizens' freedom within the legislature's power for the sake of creating
a peaceful environment in which social and economic reforms
could be achieved.'35 They dropped the substantive due process protection
altogether and revised Article 15 of the draft constitution to
read as follows: "No person shall be deprived of life or personal liberty
except according to procedure established by law."'
6

D. THE RETURN OF DUE PROCESS-INFUSION OF ITS SUBSTANCE

INTO THE CONSTITUTION
Can a constitution that "secures liberties by providing for judicial
review of executive and legislative action on the basis of court-

130. See id. at 98-99.

131. See id. at 101-12 (discussing the history of due process and liberty in India's
draft constitution).
132. See id. at 104 (illustrating the conflict between individual rights and the
States' general police duties).
133. See id.
134. See id.
135. See AUSTIN. supra note 50, at 104 (discussing the Constituent Assembly's
final determination with respect to due process).
136. TRIPATHI, supra note 42, at 85 (noting that the phrase "procedure established
by law" was borrowed from the Japanese Constitution).
436 [14:413
CONSTITUTIONALISM AND RIGHTS IN LNDL4
policed standards of reasonableness simply succeed in avoiding the
doctrine of 'due process' and 'police powers"'?"' Certainly not, as
the Constituent Assembly debates and a closer reading of the fundamental
rights provisions demonstrate.'
Many lovers of liberty criticized the revised Article 15 of the draft
constitution when it was submitted to the Constituent Assembly."
As it stood, this Article seemed to safeguard the irreducible claims of
life and liberty only by a mere "'procedure established by law."'"
There was no mention of the specific type of procedure required to
deprive a citizen of his life and liberty"' and no guarantee of a fair
trial with aid of counsel in a court of law. Finally, the Chairman of
the Drafting Committee decided to insert a new article into the draft
constitution, which corresponds to Article 22 of India's Constitution-
the right to a fair trial." 2

137. Id. at 90; see also supra notes 87-92 and accompanying text (discussing the
"reasonable restriction" provision of Article 19 of the Indian Constitution).
138. See TRIPATHI, supra note 42, at 90-94 (describing police powers, due process,
article 19, and United States precedents): see also INDIA CONST. pt. Ill, arts.
19-22, reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, sitpra
note 7, at 1, 45-59 (enumerating fundamental rights).
139. See AUSTIN, supra note 50, at 105 (noting, further, the popularity of Article
15 with due process supporters).
140. INDIA CONST. pt. III, art. 21, reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 5 1.
141. See TRIPATHI, supra note 42, at 89 (describing the deficiencies of the
amendment).
142. Referring to the apprehensions expressed by the Constituent Assembly
members on the removal of "due process," from Article 15 of the draft constitution,
Dr. B.R. Ambedkar observed: "'We are therefore, now, by introducing Article
15A, (Article 22 of the Constitution) making, if I may say so, compensation for
what was done then in passing Article 15. In other words, we are providing for the
substance of the law of "due process" by the introduction of Article I5A." IL (citing
IX Constituent Assembly Debates 1497).
At the end of the debate on the inclusion of Article 15A, Dr. Ambedkar again
stated:
Ever since that article (Article 15) was adopted, I and my friends had been trying in
some way to restore the content of due procedure with its fundamentals w ithout using
the words "'due process." I should have thought that the members who are interested in
the liberty of the individual would be more than satisfied for being able to have the
prospect before them of the provisions contained in Article 15A.
1998] 437
438 AM. U. INT'L L. REV. [14:413
Furthermore, Article 19, one of the Constitution's fundamental
rights provisions, guarantees many crucial freedoms such as freedom
of speech and freedom of assembly."3 Significantly, Clauses 2
through 6 of the same Article articulate the specific grounds on
which "reasonable restrictions" can be placed by the legislature to
curb these freedoms. 44 Who has the authority to determine the "reasonableness"
of these restrictions and the validity of the law? It is
none other than the Judiciary.4 Therefore, "reasonableness" is "substantive
due process," and these provisions, in effect, provide important
due process protections. This logic applies to Articles 20 and
22 as well. In essence, those Articles define the contours of individual
rights protected by due process and the corresponding power of
the State. 46
Thus, the founding fathers remarkably planted the seeds embodying
the "substance" of due process within the Constitution. It is a

143. See supra notes 87-92 and accompanying text (describing the provisions of
Article 19).
144. See TRIPATHI, supra note 42, at 85 (discussing the grounds for "reasonable
restrictions" on Article 19's provisions). Article 13 of the draft constitution corre sponds
to Article 19, Clauses 2 through 6 of the Constitution. See TRIPATHI, sttprta
note 42, at 85 (noting that initially, the restrictions permitted on the seven freedoms
in Article 13 were not justiciable). One of the members of the assembly had,
however, made a prescient suggestion. See id. at 86-87 (recounting the criticism
and suggestion of Pt. Thakur Das Bhargava). He said:
Sir, one speaker was asking where the soul in the lifeless article 13 was? I am putting
the soul there. If you put the word "reasonable" there, the Court will have to say
whether a particular act is in the interests of the public and, secondly, whether the restrictions
imposed by the legislature are reasonable, proper and necessary in the circumstances
of the case. The courts will have to go into the question and it will not be
the legislature and the executive who could play with the fundamental rights of the
people. It is the courts who will have the final say. Therefore, my submission is that
we must put in these words "reasonable," or "proper" or "necessary" or whatever good
word the House likes. I understand that Dr. Ambedkar is agreeable to the word "reasonable."
Otherwise, Article 13 is a nullity. It is not fully justiciable now and tile
courts will not be able to say whether the restrictions are necessary or reasonable.
Id.
145. See TRIPATHI, supra note 42, at 90 (describing due process as a judicial test
of "reasonableness").
146. See supra notes 93-101 and accompanying text (describing the provisions
of Articles 20 and 22 of the Indian Constitution).CONSTITUTIONALISM AND RIGHTS IN IVDIA
great pity, however, that these seeds did not begin to sprout until
twenty-eight years after the commencement of the Constitution.
II. JUDICIAL PROTECTION OF FUNDAMENTAL
RIGHTS
The content of Part III of the Indian Constitution has changed
since 1950 when the Constitution came into force; however, the
rights have grown neither swiftly nor steadily. The Supreme Court
and its exercise of judicial review since its inception in 1950 are important
parts of the story of human rights in India."' The bold introduction
of the power of judicial review in an under-developed Asian
nation such as India was indeed beneficial."' The exercise of this
power by the Supreme Court, however, was not without problems.
During the first year of its inception, the Court leveled 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 fulfill the tests of other fundamental rights."
Generally, the discourse on constitutionalism in the early years revolved
around the issues pertaining to land reform legislation and
grievances of the landed gentry. Not surprisingly, the right to property
was the most litigated constitutional provision and the subject of
numerous constitutional amendments.'5 ' Unfortunately, during the

147. See generally GOBIND DAS, THE SUPREME COURT IN QUEST OF IDE\TITY
(1986); UPENDRA BAXI, THE INDIAN SUPREME COURT AND POLITICS (1983);
UPENDRA BAXI, COURAGE, CRAFT AND CONTENTION: THE SUPREME COURT OF
THE EIGHTIES 1-64 (1986) [hereinafter BAxi, COURAGE, CRAFT AND CONTENTiON]
(discussing the Supreme Court of India during the 1980s).
148. See TRIPATHI, supra note 42, at 68 (stating that "[b]y and large it engendered
a sense of security and respect for the law and for the law courts throughout
the country, so vital to a good beginning for a young democracy").
149. See A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
150. See id. at 33-37.
151. See Sripati, supra note 14, at 106 n.96 (providing a thorough history of land
related constitutional amendments in India).
1998] 439
AM. U. INT'L L. REV.
early period of constitutionalism in India, the Court aligned itself
with the propertied classes and was perceived as an exclusive domain
for the rich and wealthy. Adorned with judges wedded to the traditional
concepts of property rights and dated creeds, the Supreme
Court struck down both the agrarian reforms drastically needed to
usher in an egalitarian society and the legislation dealing with the
nationalization of banks.' 52 Furthermore, the Court reduced compensation
for acquisition of lands and refused to abolish the privy purses
of princes.'" In other words, the government attempted to continue
its advancement of property rights to all citizens through its power to
amend the Constitution, while the Court blocked its initiatives,
holding that Parliament did not have such an absolute power to
amend the Constitution. Ultimately, the historic case of Kesavananda
Bharathi Sripadagalavaru v. State of Kerela"5' resolved this vitriolic
Parliament-Judiciary controversy. The Court held that Parliament
could amend the Constitution, so long as it did not destroy the Constitution's
"basic features."' 5
Subsequently, the Court upheld Prime Minister Indira Gandhi's
declaration of Emergency'"--the gravest constitutional crisis in the
nascent Republic's life-acquiescing in the subversion of the Constitution
and flagrant violations of civil liberties by the Executive.'

152. See R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564 (providing the
text of what is popularly known as the Bank Nationalisation Case).
153. See Madhav Rao Scindia v. Union of India, A.I.R. 1971 S.C. 530 (provid ing
the text of what is popularly known as the Privy Purses Case); I.C. Golaknath
v. State of Punjab, A.I.R. 1967 S.C. 1643 (denying Parliament the power to amend
any of the Constitution's fundamental rights).
154. A.I.R. 1973 S.C.C. 1461.
155. Id.; see also Sripati, supra note 14, at 106 n.96 (discussing Kesavananda
Bharathi Sripadagalavaru v. State of Kerela). The nonamendable parts or the "basic
features" of the Constitution are "principle of equality," "freedom and dignity
of the individual," secularism, rule of law, judicial review, the "essence" of other
fundamental rights, and other features. See DURGA DAS BASU, CONSTITUTIONAL
LAW OF INDIA 376-77 (3d. ed. 1983).
156. See Additional District Magistrate v. Shivkant Shukla, A.I.R. 1976 S.C.
1207 (affirming Indira Gandhi's declaration of Emergency).
157. India was under Emergency Rule from June 1975 to March 1977 because
the late Indira Gandhi, who was then Prime Minister, declared an Emergency, ostensibly
to safeguard the country's integrity and security from "internal disturbances;"
however, in reality, the declaration was for purely personal and partisan
440 [14:413CONSTITUTIONA LISM AND RIGHTS i\ INDIA
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.
The Emergency period was actually India's second freedom struggle.
It was a seminal experience that spurred societal institutions to
play a crusading role in safeguarding citizens' liberties from executive
excesses. The catalytic influence of the Emergency period seems
to have contributed to the metamorphosis of the Supreme Court.
Abandoning its hitherto deferential attitude toward the executive, the
Court adopted the role of a "social auditor.""' In its new role, the
Court recognized the rights of the poor and downtrodden people of
India and expanded its reach to cover their interests.'" Thus, after

political ends. See Ved. P. Nanda, From Gandhi to Gandhi: International Legal
Responses to the Destruction of Huntan Rights and Fundamental Freedoms in India,
6 DENV. J. INT'L L. & POL'Y 1, 36 (1976) (opining that "constitutional repudiation
of a Prime Minister or a political party in power most certainly does not
comprise such a threat "to the life of the nation as required by the international
community").
158. See, e.g., Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299 (holding
Clause 4 of the Constitutional (Thirty-ninth) Amendment Act, 1975 unconstitutional).
In June 1975 the Allahabad High Court held the late Mrs. Indira Gandhi
guilty of corrupt electoral practices. See id. Mrs. Gandhi appealed as did the respondent,
Mr. Raj Narain, who filed a cross appeal before the Supreme Court
challenging the findings of the Allahabad High Court, which found Mrs. Gandhi
not guilty on only two counts. See id. While Mrs. Gandhi's appeal and the respondent
Raj Narain's appeals were pending with the Supreme Court, the Congress
party enacted the Constitutional (Thirty-Ninth) Amendment Act, 1975 to the Constitution.
See id. This amendment did three things: I) It made the Prime Minister's
election unassailable in a Court of law; 2) It deprived the defeated candidate of the
right to dispute the validity of the election by not providing another forum of appeal;
3) In effect it directed the Supreme Court to allow Mrs. Gandhi's appeal and
dismiss Raj Narain's cross appeal. See id. The Supreme Court struck down this
amendment holding that it violated the "democratic set-up" and the "'rule of law" that
are essential features of the constitution. See id.
159. Fertilizer Corp. Kamgar Union v. Union of India. A.I.R. 1981 S.C. 344,
353 (commenting, however, that "[t]he court cannot usurp or abdicate, and the parameters
of judicial review must be clearly defined and never exceeded").
160. See Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in
the Supreme Court of India, in THE ROLE OF THE JUDICIARY IN PLURAL SOCIETIES
32, 32-33 (Neelan Tiruchelvan & Radhika Coomaraswamy eds. 1987) (discussing
1998]
AM. U. INT'L L. REV.
twenty-seven years of the Republic, "the Supreme Court of India became
a Supreme Court for all Indians."' 6'
A. EXPANDING CONTENT OF FUNDAMENTAL RIGHTS
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.'62 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.' 6' Even more notably, the judges declared that any procedure
that curtails life and liberty must be right, just, fair, and infused
with the principles of natural justice. '64Procedure cannot be arbitrary,
fanciful, and oppressive. 6
1 Procedural due process, which

was crystallized in the Constitution and received a deathblow in

Gopalan, was finally resurrected twenty-eight years after the commencement
of the Constitution.
The Court's historic ruling in Maneka Gandhi resulted in remarkable
developments in the protection of life and liberty, even for individuals
accused of crimes and individuals confined behind iron
walls. The sensitized Judiciary declared that life, even life behind
prison bars, did not mean mere animal existence. 66 Ergo, death row
prisoners are entitled to food, clothing, and shelter on par with other
ordinary prisoners. Inmates are considered to be in the "safekeeping"
of prison authorities and cannot be subjected to mental or physical

the Court's recognition of the rights of the poor in India).

161. Id. at 31 (providing the Court's logic of enlarging locus standi or Ubijus
ibi remnediun so as to promote justice and embrace all interests of public minded
citizens).
162. A.I.R. 1978 S.C. 597.
163. See id. at 620 (noting that these rights are comprehensive, falling under
four categories, namely, the rights to equality, freedom against exploitation, freedom
of religion, cultural and educational rights).
164. See id. at 619-23 (noting that Article 21 provides that "[n]o person shall be
deprived of his life or personal liberty except according to procedure established
by law").
165. See id.at 624.
166. See Sunil Batra v. Delhi Admin., A.I.R. 1978 S.C. 1675 (continuing the expansion
of personal fundamental rights).
442 [14:413
CONSTITUTIONALISM AND RIGHTS iv INDIA
torture.'67 Torture, cruelty, arbitrary imposition of solitary confinement,
' use of iron chains," routine handcuffing of prisoners,'"' denial
of permission to prison inmates to have interviews with their attorneys
and family members,'" and other inhumane practices"' can
no longer pass the constitutional gauntlet masked as punitive practices
pursuant to the rule of fair procedure established in Maneka
Gandhi. The following passage perhaps best sums up the great
strides the Court had made in weaving procedural due process into
the constitutional tapestry:

True, our Constitution has no due process clause or the VIII amendment.
But after Maneka Gandhi, the consequence is the same. For what is
punitively outrageous, scandalizingly unusual or cruel, rehabilitatively
counter productive is unarguably unreasonable or arbitrary. Part Ill of the
Constitution does not part company with the prisoner at the gates. Judicial
oversight protects the prisoners' shrunken fundamental rights if
frowned, frozen or flouted on by the prison authorities.''
Additionally, as a result of Maneka Gandhi, Article 21 mandates a
speedy trial for the accused.'7' In fact, any procedure that does not
ensure a reasonably expeditious trial can never be regarded as reasonable,
fair, or just.'" Consequently, the Supreme Court held incar-

167. See id. at 1586.

168. See id. at 1587 (listing practices that are no longer acceptable for prisoners).
169. See Charles Sobraj v. Delhi Admin., A.I.R. 1978 S.C. 1590 (expanding
prisoners' fundamental rights and conditions).
170. See Prem Shanker Shukla v. Delhi Admin., A.I.R. 1980 S.C. 1535 (adjudging
that preventing a prisoner from escaping custody or becoming violent are
the only two valid justifications for chaining prisoners).
171. See Francis Coralie Mullin v. W.C. Khambra, A.I.R. 1980 S.C. 849 (noting
that the detaining authority must provide the inmate with a "very earl), opportunity
to make an effective representation").
172. See Sunil Batra v. Delhi Admin., A.I.R. 1980 S.C. 1565, 1579 (noting that
this case "imparts to the habeas corpus writ a versatile vitality and operational utility
that makes the healing presence of the law live up to its reputation as a bastion
of liberty even within the secrecy of the hidden cell").
173. Id. at 1586.
174. See id. at 1594 (directing strict compliance with the norms of Article 21).
175. See Hussainara Khatoon v. State of Bihar, A.I.R. 1979 S.C. 1360; Kadra
Pahadiya v. State of Bihar, A.I.R. 1982 S.C. 1167.
1998]
AM. U. INT'L L. REV.
ceration of pre-trial prisoners languishing in prison for patently long
periods prior to trial unconstitutional and violative of Article 2 1.'
Galvanized by "Gideon's trumpet that was heard across the Atlantic,'
' 77 the Court also declared free legal services, another ingredient
of fair procedure under Article 21, a "processual piece of criminal
justice.' 78 The right to free legal services was not the last right to be
articulated. Many more rights followed.
For example, the Court applied Article 21 's emphasis on procedural
fairness to prohibit the incarceration of a judgment debtor, who
could not afford to pay his debts, so as to decree payment. 79 Additionally,
in Rudul Shah v. State of Bihar,8 ' a trailblazing decision in
1983, the Supreme Court recognized and punished the lawless behavior
of state officials. The Court emphatically declared that Article
21 could not be meaningfully safeguarded unless the Court
"mulct[ed] its violators in the payment of monetary compensation."'
In Rudul Shah, the Court awarded compensation to the petitioner for
the loss of his limbs during his traumatic police custody.8 2 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"' and articulated the underlying principle of this right as follows:
It may be mentioned straightaway that award of compensation in a proceeding
under Art. 32 by this Court or by the High Court under Art. 226
of the Constitution is a remedy available in public law, based on strict liability
for contravention of fundamental rights to which the principle of
sovereign immunity does not apply, even though it may be available as a
defense in private law in an action based on tort.184

176. See Hussainara Khatoon, A.I.R. 1979 S.C. 1360.

177. M.H. Hoskot v. State of Maharashtra, A.I.R. 1978 S.C. 1549, 1554.
178. Id. at 1549 (ruling that free legal services was a fundamental right).
179. See Jolly George Varghese v. Bank of Cochin, A.I.R. 1980 S.C. 475.
180. A.I.R. 1983 S.C. 1086.
181. Id. at 1089.
182. See id. (noting the "theaters of torture" created by state officials in India).
183. See Nilabeti Behera v. State of Orissa, A.I.R. 1993 S.C. 1960.
184. Id. at 1966.
444 [14:413CONSTITUTIONALISM AND RIGHTS I INDIA
Most of the Court's newly articulated rights were civil and political
in nature. However, the combination of judicial review and the
influence of Directive Principles also brought visible and enduring
results in the realm of socio-economic and environmental justice.
In Olga Tellis v. Bombay Municipal Corporation,t the Court gave
a new socio-economic dimension to Article 21. Here, the Court addressed
the eviction of pavement dwellers by the Bombay Municipal
Corporation.8 6 The petitioners argued that the pavements served as
their home-cum-workplace and that eviction from the public lands
would mean a loss of their means of livelihood and life itself."' Interestingly,
the Court responded to their pitiable plight by halting all
evictions and demolitions for a period of four years following the
filing of a writ of petition.'8 The Court reasoned that although the
State could not be compelled to provide work to all its citizens, depriving
a person of his means of livelihood was tantamount to depriving
him of his right to life.'8" The Court stated: "Any person, who
is deprived of his right to livelihood except according to just and fair
procedure established by law, can challenge the deprivation as offending
the right to life conferred by Art. 21.""' Based on this recently
revealed socio-economic aspect of Article 21, the Court
passed interim orders in other cases where the government's decisions
proved potentially harmful to poor citizens' life styles and welfare.
191
Beginning from the early 1980s, the Court also began to green Indian
Constitutional law to safeguard the citizens' health from the
deleterious consequences of environmental degradation. The Court
relied on the Constitution's Part IV Directive Principle, which mandates
the State to protect and improve the environment and safeguard

185. A.I.R. 1986 S.C. 180.

186. See id. at 193.
187. See id. at 194.
188. See id.
189. See id. at 194.
190. Id.
191. See, e.g., Karjan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat, A.I.R. 1987
S.C. 532 (checking government's decisions on environmental issues).
1998] 445
AM. U. INT'L L. REV.
the country's forests and wildlife,'92 and prior case law that expanded
the definition of "life" under Article 21 to recognize pollution and
environmental degradation as violative of the spirit of Article 21. ,9'
Rural Litigation and Entitlement Kendra v. State of Uttar
Pradesh9'4 ushered in this trend. In Kendra, 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.9 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 6-as involving a violation of Article 21 's right to life.
Ten years later, the Court clearly established this link between environmental
degradation and Indian citizens' fundamental right to
life by holding:
Article 21 protects the right to life as a fundamental right. Enjoyment of
life and its attainment including the right to live with human dignity encompasses
within its ambit, the protection and preservation of the environment,
ecological balance, free from pollution of air and water sanitation
without which life cannot be enjoyed. Any actions that would cause
environmental pollution, ecological, air or water pollution, etc. should be
regarded as amounting to violation of Article 21.'9
In a more recent decision, the Court incorporated the "polluter
pays" principle into Indian constitutional law.' 9' Specifically, the

192. See INDIA CONST. pt. IV, art. 48A, reprinted in VII CONSTITUTIONS OF TIlE
COUNTRIES OF THE WORLD, supra note 7, at 1, 79 (concerning "protection and improvement
of environment and safeguarding of forests and wild life").
193. See supra notes 162-65 and accompanying text (discussing how the Slipreme
Court of India declared that life in Article 21 did not mean mere animal existence).
194. A.I.R. 1985 S.C. 652.
195. See id.
196. See supra note 192 (providing the text of Article 48A of India's Constitution).
197. Virendra Gaur v. State of Haryana, A.I.R. 1995 S.C. 577.
198. See D. Shanmuganathan & L.M. Warren, Status of Sustainable Developinent
as a Principle of National and International Law: The Indian Approach, 9 J.
OF ENVTL. L. 387, 397-402 (1997) (discussing the case of Indian Council for Envi-
446 [14:413
CONSTITUTIONALISM AND RIGHTS I N LVDIA
Court found chemical companies liable for environmental pollution
caused by toxic sludge, and held that they must pay a sum determined
by the federal government for remedial measures.
The above environmental decisions have far reaching significance.
By raising environmental matters to the level of constitutional issues,
the Court enabled citizens to invoke its writ jurisdiction. In other
words, the Court provided citizens a speedy and inexpensive tool to
take action against industries that often exploit and harm them and
rarely consult them on matters of significant importance.
B. SCOPE OF THE FUNDAMENTAL RIGHTS
A striking feature of the Indian Constitution is that many of the
human rights provisions in Part III are couched in universal termsthey
are not addressed merely to the State.' Nevertheless, one
cannot avoid wondering whether non-state actors are completely
amenable to the Court's remedial judicial review?
Thus, in a series of cases the Court developed creative juristic
ways to draw private actors "into the tent of state action-:' to discipline
exploitative relations between groups, institutions, and men and
women in Indian civil society. In People's Union Jbr Democratic
Rights v. Union of India, 2
1
2a case concerning the existence of bonded
labor, the Court found private contractors employed by the Delhi
Administration liable for the non-payment of minimum wages to migrant
laborers.20'3 Fortunately, in another case involving a private fertilizer
plant's emission of noxious gases hazardous to both workers'
ronmental Legal Action v. Union of India).

199. See id.

200. The following Articles in Part Ill of the Indian Constitution are all stated in
general terms and have not been addressed merely to the State: Article 17 dealing
with untouchability, Article 19 dealing with Fundamental Freedoms. Article 21
dealing with due process, Articles 23-24 dealing with exploitation, Articles 25, 26,
29 and 30 dealing with religious and cultural rights. These rights can therefore be
claimed against anybody without establishing a connection with the State.
201. Sukhdev Singh v. Bhagatram, A.I.R. 1975 S.C. 1331, 1355 (citing Arthur
S. Miller, The Constitutional Law of the "Securit " State. - 10 STAN. L. REV. 620,
664 (1958)).
202. A.I.R. 1982 S.C. 1473.
203. See id.; see also Bandhua Mukti Morcha v. Union of India, A.I.R. 1984
S.C. 802 (protecting workers rights).
1998] 447
AM. U. INT'L L. REV.
health and the environment, the Court did not balk from holding the
privately owned company liable for failing to discharge its statutory
obligations.2° More recently, in Mohini Jain v. State of Karnataka,"'
the Court held a private educational institution amenable to the discipline
of Part III of India's Constitution. Reading Article 41-a Directive
Principle-into the fundamental rights chapter, the Court articulated
yet another socio-economic right-the right to education."
Basically, the Court adjudged that no citizen could lead a life of dignity
inherent in Article 21 unless he or she is educated. 07 The State
discharges its constitutional duty to provide education to its citizens
through private educational institutions.2 " Therefore, in Mohini lain,
where Indian private schools charged exorbitant tuition and kept
educational courses beyond the reach of the common man, the Court
held that the schools were acting in a manner repugnant to the Constitution.
2 9 Moreover, it is only when the Court marches along the
road to social justice with the banner of democracy and the rule of
law, as illustrated above, that Part III of the Constitution becomes a
living reality for Indians.
There is a considerable amount of additional case law that contributes
to India's constitutional jurisprudence. Indeed, the thousands of
cases Indian courts decide daily testify to the steady realization of
constitutional values, including, but not limited to, religious liberty,
equality, affirmative action, and freedom of the press.
C. ANALYSIS
What can one learn from comparing the Supreme Court's ruling in
Gopalan with its decisions in the post-Emergency era? The lesson, in
short, is 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

204. See M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 965 (also known as Sri
Ram Fertilizer Gas Leak Case).
205. A.I.R. 1992 S.C. 1858.
206. See id.
207. See id.
208. See id. at 1863-64, 1870-71.
209. See id.
448 [14:413CONSTITUTIONALISM AND RIGHTS IN NDIA4
of its reach. Although the founding fathers infused the substance of
procedural due process within the Constitution, it remained a chimera
for twenty-eight years only because of judicial myopia.
If Gopalan represents the dramatic demise of procedural fairness
at the hands of the judiciary, then Maneka Gandhi and its progeny
demonstrate the Court's valiant efforts to make the constitutional
provisions a living reality for the masses. Furthermore in People's
Union for Democratic Rights," although the state steadfastly contended
that payment of inadequate wages did not amount to forced
labor, the Court rejected this specious argument. 11: The Court reasoned
that given the acute inequalities in Indian society, where compulsion
of economic circumstances leads workers to accept work for
inadequate wages, it is tantamount to "forced labour."." Force cannot
be construed to mean only physical or legal force." Therefore, payment
of inadequate wages is violative of the freedom from exploitation-
a right that is available against the whole world."
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.
A danger, however, still lurks. While broadening the scope and
ambit of Part III, the Court may be unwittingly "invit[ing] an uncontrollable
sprawl" of fundamental rights."' This type of sprawl would

210. See supra Part II.A (discussing cases following Maneka Gandhi v. Union of
India where the Supreme Court expanded the scope of fundamental rights guaranteed
to Indians-commonly considered Social Action Litigation ("SAL") cases).
211. A.I.R. 1982 S.C. 1473.
212. See id. at 1480.
213. Id. at 1490.
214. See id.
215. See id. at 1482-83.
216. See Rajeev Dhavan & Jeevan Reddy, The Jurisprudence of Human Rights,
in HUMAN RIGHTS AND JUDICIAL REVIEW 174. 204 (David Beatty ed., 1990).
1998] 449
AM. U. INT'L L. REV.
lead to a "grotesque result. '2 17 Fortunately, the Court is aware of this
matter and has exercised caution in accepting spurious claims masquerading
as alleged human rights violations. It has consequently
rejected "the theory that a peripheral or concomitant right which facilitates
the exercise of a named fundamental right or gives it meaning
and substance or makes its exercise effective is itself a fundamental
right."2 Yet, certain instances arise where leaving some
aspects of a freedom unprotected result in the freedom itself becoming
ineffective. Indeed, the Supreme Court of India has faced some
of these issues. For example, the government has imposed unfair and
onerous taxes on the press and has controlled the supply of newsprint.
219 Although the Constitution does not specifically articulate
freedom of the press, the Court protected crucial aspects of this right
so as to render the freedom meaningful. The Court retained the value
of this freedom under the rubric of protecting the Indian people's
fundamental right to speech and expression.22
The expanding scope of fundamental rights in India also sheds
light on a characteristic of many third world nations-the State's
lawlessness and its scant regard to the constitutional ethic.22 ' Seen in
this light, the Indian Supreme Court must be applauded for its tireless
and impassioned calls to the government to take the Constitution seriously
and respect the dignity of those it governs. Article 39 of the
Constitution mandates the state to provide free legal services to the
poor."' For three long decades, however, Parliament demonstrably
ignored this provision because of its political preoccupations. The is-

217. Id.
218. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597, 642.
219. Accord Bennet Coleman & Co. v. Union of India, A.I.R. 1973 S.C. 106
(concerning newsprint); Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union
of India, (1985) 1 S.C.C. 641; Prabha Dutt v. Union of India, A.I.R. 1982 S.C. 6;
The Printers (Mysore) Ltd. v. Asst. Commercial Tax Officer JT 1994 (1) S.C. 692.
220. See, e.g., Bennet Coleman & Co., A.I.R. 1973 S.C. 106 (protecting freedom
of the press under the fundamental right to speech and expression).
221. See Radhika Coomaraswamy, Uses and Usurpation of Constitutional Ideology,
in CONSTITUTIONALISM AND DEMOCRACY 159, 163-65 (Douglas et al. eds.,
1993); cf supra note 180 and accompanying text (discussing Indian officials' inappropriate
behavior).
222. See INDIA CONST. pt. IV, art. 39A, reprinted in VII CONSTITUTIONS OF TIlE
COUNTRIES OF THE WORLD, supra note 7, at 1, 78.
450 [14:413
CONSTITUTIONALISM AND RIGHTS IN INDIA
sue was ultimately left to the judiciary-the least democratic organ
of the government-to articulate the right to free legal services and
prod the government to fulfill its mandate.:' While the Court has
been able to deliver more than what citizens traditionally expect,
there are instances where the Court has done less. In the Pavement
Dwellers Case, -4 although the petitioners pleaded the Court to order
the State to undertake a low-income housing program in Bombay,
the Court confined itself to suggesting that such programs be "'pursued
earnestly" and "implemented without delay.":: The Court in
India thus plays a political role with unclear legislative and adjudicative
functions. 2"6
In articulating new rights and coming to the succor of the poor and
oppressed, the Court has made bold and impressive forays into uncharted
areas of social justice. There is a danger, however, that the
Court may falter and reject the just claims espoused by unpopular
minorities on the basis that "a majoritarian understanding expressed
through judicial discourse finds them morally offensive."22" For instance,
homosexuals in India have demanded the repeal of a few discriminatory
provisions of the Indian Penal Code that criminalizes
certain types of sexual activity. It is therefore imperative that in the
future, the Court evaluates the "moral worth of human rights
claims" 22 with an "expansive wisdom ... so as to preserve the right
of all human beings to mutual respect and concern. '
It is interesting to note that the newly evolved human rights jurisprudence
in India owes its origin to the creativity of a few activist
Supreme Court judges of the late 1970s, such as P.N. Bhagvati,
widely regarded as the father of India's judicial renaissance, Krishna

223. See supra notes 177-78 and accompanying text (discussing ,LH. Hoskot
case where the Supreme Court declared free legal services a fundamental right).
224. See generally Olga Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C. 180
(illustrating a situation where the Court merely suggested, instead of required, action
to protect rights of the indigent).
225. Id.
226. See Baxi, supra note 160, at 33 (examining the political role of the Supreme
Court of India).
227. Dhavan & Reddy, supra note 216, at 195.
228. Id.
229. Id. at 205.
1998]AM. U. INT'L L. REV.
Iyer, R.S. Pathak, and Chadrachud. 2"° Fortunately, some of their successors,
including Justices Kuldip Singh, J.S. Verma, and
Venkatachaliah have maintained this activist momentum. 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.
D. REMEDIES FOR VIOLATIONS OF RIGHTS
Human rights are empty declarations unless buoyed with means of
enforcement and protection. Because India is a functioning democracy,
some remedies for the abuse of citizens' rights are implied in
the theory and structure of government. The right to vote, to select
one's representatives for the three tiers of government-Parliament,
state legislatures, and the village panchayats-and the right to replace
representatives if they abuse citizens' rights, are crucial remedies
in this regard. Significantly, adult franchise has existed since independence,
and no segment of the population is without the right to
vote. The potency of this remedy was amply evident in 1977, when
Indira Gandhi revoked the Emergency and called for general elections.
As a result of the atrocities her government committed during
the Emergency, both she and the party were routed in the hustings,
and the Janata Party came into power with a clear majority. Since the
commencement of the Constitution in 1950, except for the brief
Emergency period, India has held periodic general elections, affirming
the democratic power of the people. Further, the Constitution includes
other protective devices, such as the power of judicial review
contained in Article 13,231 which allows every citizen to ask the Supreme
Court for the vindication of his fundamental rights.

230. See P.N. Bhagwati, Social Action Litigation: The Indian Experience, in
THE ROLE OF THE JUDICIARY IN PLURAL SOCIETIES, supra note 160, at 21.
231. See INDIA CONST. pt. III, art. 13, reprinted in VII CONSTITUTIONS OF TFE
COUNTRIES OF THE WORLD, supra note 7, at 1, 33-34 (concerning "laws that are
inconsistent with or in derogation of the fundamental rights").
[14:413
CONSTITUTIONALISM AND RIGHTS LV INDL4
E. INNOVATIVE & AFFIRMATIVE REMEDIES
During the Supreme Court's first three decades, it performed the
traditional function of presiding over adversarial legal proceedings
and issuing orders to the parties.2'2 Given this limited function, traditional
Anglo-Saxon remedies proved adequate in dispensing justice.
In its new role as social auditor, however, the Court further provides
socio-economic and environmental justice to the common man.
In short, the Court set for itself a new socio-economic destination
and consequently formulated "meta-rights," 2" which are 'the collective
social rights and duties of groups, classes, and communities."'!"
Meta-rights were necessary because the litigants consisted of individuals
drawn from the lowest rung of society: slum dwellers, torture
victims, prisoners, migrant laborers, and women and children from
destitute homes.235 These people brought to the docket an array of
novel issues never before addressed by the Court.2'" Accordingly, the
Court faced the issue of whether law based on traditional Anglo-
Saxon principles could properly dispense equitable and distributive
justice in these circumstances.
It is a tribute to the craftsmanship of the Indian judiciary that it
created novel procedural innovations, which adhere to constitutional
principles and ground realities. This triggered a silent, judge-led
revolution called the Social Action Litigation movement ("SAL"), or
Public Interest Litigation ("PIL") movement, in India.2"

232. See generally Bhagwati, supra note 230 (defining the Court's role before
its shift towards being a social auditor).
233. See S.P. Gupta v. Union of India, A.I.R. 1982 S.C. 149, 192 (showing Justice
Bhagwati's use of meta-rights in his landmark decision); see also Mauro Cappelletti,
Vindicating the Public Interest through the Courts: A (omparativist's
Contribution, in ACCESS TO JUSTICE: EMERGING ISSUES AND PERSPEcTIVES 513
(M. Cappalletti & B. Garth eds., 1979) (defining meta-rights). In this article, Cappalletti
opines Public Interest Litigation responded to the "'massification phenomenon,"
in which important rights were considered diffuse and meta-individual. See
id.
234. Bhagwati, supra note 230, at 21.
235. See id. at 25-27.
236. See id. at 27.
237. See id. at 20-31 (discussing the birth of the SAL and PIL movements in India).
1998]AM. U. INTL L. REV.
The first procedural innovation introduced by the Court in the beginning
stages of the movement was a broadening of the concept of
locus standi. This innovation opened the courts to people who were
previously required to show personal injury. 3 In the words of Justice
Bhagwati, the father of the SAL movement:
[W]here a legal wrong or legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitutional or legal
right and such person or determinate class of persons is by reason of
poverty, helplessness, or disability or socially or economically disadvantaged
position unable to approach the Court for relief, any member of the
public can maintain an action for an appropriate direction, order or writ.""
Popular access to courts brought into judicial focus rights violations
previously hidden from the public eye, including torture of
prisoners and police detainees, existence of bonded labor, illtreatment
of migrant laborers, and exploitation of women and children.
Prisoners, laborers, torture victims, exploited women and children,
mental patients and other vulnerable groups whose voices had
so long gone unheard now found a forum for their grievances.2 4" Of
late, PIL has become a powerful weapon in exposing corruption in
high places and ensuring the accountability of public leaders. 1
4 It
was a PIL petition that exposed former Prime Minister P.V. Nara-

238. See generally S.R. Gupta, A.I.R. 1982 S.C. 149 (illustrating the Court's
initial broadening of locus standi).
239. Id. at 188.
240. See Kadra Pahadiya v. State of Bihar, A.I.R. 1982 S.C. 1167 ("In the present
case but for the letter written by the Free Legal Aid Committee, these unfortu nate
prisoners, deprived of freedom and liberty . . . would have continued to remain
in jail without any hope of ever becoming free."); Prem S. Shukla v. Delhi
Admin., A.I.R. 1980 S.C. 1535 (concerning the handcuffing of prisoners); Khatri
v. State of Bihar, A.I.R. 1981 S.C. 928 (discussing the ill placement of blind prisoners);.
Sunil Batra v. Delhi Admin., A.I.R. 1980 S.C. 1579 (involving a prisoner
who was abused by a wardon's baton); Hussainara Khatoon v. State of Bihar,
A.I.R. 1979 S.C. 1360 (granting pretrial releases for men, women, and children on
the basis that "it is a crying shame on the judicial system which permits incarceration...
for such long periods of time without trial").
241. See Sumit Mitra & Sayantan Chakravarty, Locking Horns: Judiciar" vs.
Lxecutive, INDIA TODAY, July 28, 1997, at 22-27; Manoj Mitta, Supreme Court-
Setting the Agenda, INDIA TODAY, Feb. 15, 1996, at 34; Manoj Mitta & Raj Kumar
Jha, Judiciary: Mr. Justice J.S. Vernza, INDIA TODAY, Mar. 15, 1996, at 98.
[14:413CONSTITUTIONALISM AND RIGHTS i,% IND4
simha Rao's alleged bribing of certain Parliament members.4 2 Similarly,
a PIL petition brought the Jain-Hawala case, involving corruption
to the tune of several millions, to the judicial docket.2"' As one
Supreme Court judge remarked, "This [PIL] seems to be of singular
importance in the history of Indian parliamentary democracy.'
"Only PU. can expose graft in high places,"2"5 rightly opines a senior
attorney.
The Court also introduced "epistolary jurisdiction."' Generally, a
court forsakes formalism and grants judicial proceedings in an
"epistolary fashion" when freedom is at stake. "' For example, the
Supreme Court treated letters communicating the torture of prisoners,
2' the despicable plight of women in state-run welfare homes,2'
the plight of inmates in a mental institution, ' ' the degradation of the
environment,' the existence of bonded labor,252 and the eviction of
242. See Mitra & Chakravarty, supra note 241, at 26; Charulata Joshi, CBI
Going Soft on the PM, INDIA TODAY, Feb. 29, 1996, at 22; Charulata Joshi, J.WlI
Payoffs Case: Tortuous Progress, INDIA TODAY, Dec. 31, 1996, at 20 (describing
the bribery of Parliament members for their support during the 1993 nonconfidence
motion).

243. See Mitra & Chakravarty, supra note 241, at 24-26; Zafar Agha, Hawala:
Congress-Explosive Fallout, INDIA TODAY, Feb. 15, 1996, at 22; Bharat Desai,
Hawala: Jain Family: The Bold and the Brazen, INDIA TODAY, Feb. 15, 1996. at
40; Charluata Joshi, Hawala Charge Sheets: Inexplicable lapses, INDIA TODAY,
Feb. 15, 1996, at 34; Charulata Joshi, Hawala Case, INDIA TODAY, Mar. 15, 1996,
at 30; N.K. Singh, Hawala: BJP Tarred with the same Brush, INDIA TODAY, Feb.
15, 1996, at 28.
244. Mitra & Chakravarty, supra note 241, at 24.
245. Id. at 26.
246. See generally Sunil Batra v. Delhi Admin. 1980 S.C. 1579 (allowing a letter
written by another prisoner to constitute a writ petition).
247. Accord id. (invoking epistolary jurisdiction); Prem Shanker v. Delhi
Admin, A.I.R. 1980 S.C. 1535 Vikram Deo Singh Tomar %. State of Bihar, 1988
Supp. S.C.C. 734, 736; Sheela Barse v. State of Maharashtra, A.I.R. 1983 S.C.
378.
248. See Sunhil Batra v. Delhi Admin., 1980 S.C. 1579.
249. See Upendra Baxi v. State of U.P., A.I.R. 1987 S.C. 191.
250. See Veena Sethi v. State of Bihar, (1982) 2 S.C.C. 583; Vikram Deo Singh
Tomar v. State of Bihar, 1988 Supp. S.C.C. 734, 736; Sheela Barse v. State of Maharashtra,
A.I.R. 1983 S.C. 378.
251. See Rural Litigation & Entitlement Kendra, Dehradun v. State of Uttar
Pradesh, A.I.R. 1985 S.C. 652.
1998]
AM. U. INT'L L. REV.
pavement dwellers,"3 as writ petitions and initiated judicial proceedings.
Furthermore, in Nilabati Behera v. State of Orissa,14 the Court
treated a letter from a hapless mother complaining of the death of her
son in police custody as a writ petition.255
In Sunil Batra v. Delhi Administration,56 a prisoner exposedvia
a postcard to the Supreme Court-the brutal assault on another
inmate by a prison official.257 The Court treated this letter as a habeas
corpus petition. - '8 Particularly, the Court in Sunil Batra broadened
the scope of habeas corpus making the writ available to a prisoner for
the protection of a constitutional right-freedom from torture-to
which he was lawfully entitled even while in confinement.!"
Throughout the movement, where parties were too weak to secure
evidence, the Court appointed a diverse group of social activists,
teachers, scholars, journalists, bureaucrats, and judicial officers, to
act as "commissioners" and assist in the expensive task of gathering
evidence. 20 Thus, the Court adopted a "more positive attitude in determining
the facts. 2 6' In a case involving the ecological deterioration
of a national park, the Court appointed a commission to assess
the consequences that mining had on the park's wildlife and environment.
Further, the Court directed the commission to make appropriate
recommendations for addressing potential threats to the environment

252. See People's Union for Democratic Rights. v. Union of India, A.I.R. 1982
S.C. 1473.
253. See Olga Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C. 180.
254. A.I.R. 1993 S.C. 1960.
255. See id.
256. A.I.R. 1980 S.C. 1579.
257. See id.
258. See id. at 1582.
259. See id. at 1586 (explaining that the habeas writ "has functional plurality
and the constitutional regard for human decency and dignity is tested by this capability.").
260. See Bhagwati, supra note 230, at 25-28.
261. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, 841.
262. See Tarun Bhagat Sangh, Alwar v. Union of India, A.I.R. 1993 S.C. 223.
263. See id.
[14:413
CONSTITUTIONALISM AND RIGHTS IN INDIA
In cases involving openly scandalous rights violations for
which traditional remedies were inadequate, the Court gave immediate
and significant interim relief, deferring its final decision on factual
issues and legal liability. In Klatri i'. State ofBihar, ' the Bagalphur
blinding case, the police allegedly tortured and blinded
several pre-trial prisoners. ' 5 The court directed the Bihar State government
to provide medical and rehabilitative services to the blinded
prisoners before determining the police officers' culpability. =' Likewise,
in MC. Mehta v. Union of India,2' a case involving the emission
of noxious gases from a privately owned factory, the Court ordered
the closure of the plant and set up a victim compensation
scheme within days of the petition's filing.2" Thus, the Court in
Khatri and MC. Mehta made interim decisions prior to determining
the culpability of the police officers and whether it had jurisdiction
under Article 32 of the Constitution in order to provide relief against
. 69 a private entity.

The Court has also addressed human rights violations that are administrative
in nature without hesitation. Lawless disregard of statutory
or constitutionally imposed administrative duties can now result
in human rights violations.2 7" For instance, in a case involving abhorrent
conditions in a mental institution, the Court immersed itself in
administrative minutiae. 7' The Court went to the extent of directing
hospital authorities on the amounts of money to spend for meals and

264. A.I.R. 1981 S.C. 928.

265. See id.
266. See id.; see also Hussainara Khatoon v. State of Bihar, A.I.R. 1979 S.C.
1369 (involving directions by the Supreme Court to the State administration to
provide free legal services to indigent prisoners even while their cases remained
pending and the final decision was not made until several years later).
267. A.I.R. 1987 S.C. 965.
268. See id.
269. See id.
270. See Baxi, supra note 160, at 41 (noting that the Court recognized the nghts
of the poor during the post-Emergency period).
271. See Rakesh Chandra Narayan v. State of Bihar, A.I.R.1989 S.C 348.
1998] 457
AM. U. INT'L L. REV.
medicines.2 72 Further, it called for removal of management-imposed
limits that curtailed the purchase of drugs for inmates.2"
The preceding analysis demonstrates that the Indian Supreme
Court has developed an indigenous jurisprudence appropriate to its
own institutional and sociological environment. In doing so, the
Court has protected the masses by securing their basic human rights.
Though PIL has some drawbacks, its benefits include deterring lawlessness,
creating positive publicity, and serving as a catalyst for
legislative action. 74 In a society where "freedoms suffer from atrophy
and activism is essential for participative public justice, some
risks have to be taken.",275
One can say that judicial review has led to the progress of constitutionalism
in India. On account of these decisions, the Court has engendered
respect for the Constitution and for fundamental rights,
notwithstanding denial by the government of rights violations or its
slow response in implementing the Court's directives. Judicial review
has worked well in India because of the single unified judicial
system headed by the Supreme Court. There are no separate constitutional
courts in India. The unified judicial system therefore permits
constitutional issues to be raised in any case in any court in the
country, pending ultimate resolution by the Supreme Court. This
procedure minimizes the danger of differences of opinion arising out
of the constitutionality of constitutional provisions.
Since the Court's record of protecting human rights and upholding
the rule of law has been encouraging, it might be wise to consider
constitutional litigation as one of the viable strategies for liberating

272. See id. at 352-353.

273. See id.
274. In Mehta v. Union of India, the Court recommended that the government
set up environmental courts comprised of a professional judge and two environmental
scientists, to deal with the plethora of environmental issues brought before
the Court. See M.C. Mehta v. Union of India, (1986) 2 S.C.C. 176. Last year, the
Federal Government set up the National Environmental Appellate Authority-a
quasi-judicial body headed by a retired judge of the Supreme Court. See MINISTRY
OF ENVIRONMENTS AND FORESTS, ANNUAL REPORT OF THE GOVERNMENT OF
INDIA (visited Nov. 30, 1998) <http://www.nic.in/envfor/report/report.html>.
275. Fertilizer Corp. Kamgar Union v. Union of India (1981) 1 S.C.C. 568; see
also infra Part V.A (discussing the criticism that PIL has received).
458 [14:413
CONSTITUTIONALISM AND RIGHTS i INDIA45
the poor and the downtrodden. It is no wonder, then, that foreign jurists
and scholars have applauded the Indian Supreme Court."'
III. INDIAN CONSTITUTIONALISM AND
INTERNATIONAL HUMAN RIGHTS
Today, the constitutions of almost all of the world's 160 nations
incorporate protection of human rights. This section explores the influence
of international developments on Indian constitutional jurisprudence.
The end of World War II heralded the dawn of a new era in which
violations of freedoms and rights no longer remained within the exclusive
dominion of domestic concern. Indeed, the United Nations
Charter,'71 the most widely ratified instrument in the world, established
human rights as a matter of international concern. In 1948, the
United Nations General Assembly adopted the Universal Declaration
of Human Rights,27" articulating the importance of rights that were
threatened during the 1940s. Following the adoption of the Universal
Declaration, two other important human rights instruments were
drafted: the International Covenant on Civil and Political Rights
("ICCPR") 29 and the International Covenant on Economic Social and
Cultural Rights ("ICESCR").' * These three instruments comprise the
International Bill of Human Rights-a comprehensive bundle of human
rights obligations that the United Nations imposes on its members.
1

276. See, e.g., DAVID BEATTY, CONSTITUTIONAL LAW IN THEORY AND

PRACTICE 115 (1995) (noting that "the way in which the [Indian] Supreme Court
has exercised its powers of review for almost fifty years shows that it is every bit
as strong a defender of personal freedom and human dignity as any of the major
courts in the free and democratic world").
277. U.N. CHARTER, reprinted in SELECTED INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS 1 (Frank Newman & David Weissbrodt eds., 1990).
278. See Universal Declaration of Human Rights, supra note 10.
279. See International Covenant on Civil and Political Rights, supra note 2 i.
280. See Iternational Covenant on Economic, Social and Cultural Rights, supra
note 22.
281. See B.G. RAMCHAAN, THE CONCEPT AND PRESENT STATUS OF THE
INTERNATIONAL PROTECTION OF HUMAN RIGHTS: FORTY YEARS AFTER THE
UNIVERSAL DECLARATION 39 (1989) (discussing the International Bill of Human
Rights, which is "the legal basis of protection").
1998] 459
AM. U. INT'L L. REV.
There are also conventions dealing with genocide,82 racial discrimination,
283 discrimination against women,8 torture and other
cruel, inhuman or degrading treatment or punishment, ' - rights of the
child,286 and the rights of refugees.287 Yet, there is no regional agreement
for protecting human rights exclusively in Asia, despite the existence
of comprehensive regional agreements for Africa, the Americas,
and Europe. Examples of these regional agreements include: the
African Charter on Human and People's Rights;28 the American
Convention on Human Rights; 29 and the European Convention on
Human Rights.2 90 Today, the codification of human rights law surpasses
the codification of all other areas of international law.29

282. See Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, 78 U.N.T.S. 27 ("recognising that at all periods of history
genocide has inflicted great losses on humanity, and .... convinced that in order
to liberate mankind from such odious, scourge, international co-operation is required.").
283. See hIternational Convention on the Elimination of All Forms of Racial
Discrimination, 660 U.N.T.S. 195, opened for signature Mar. 7, 1966.
284. See Convention on the Elimination of all Forms of Discrimination Against
Women, G.A. Res. 34/180, U.N. GAOR, Supp. No. 46, at 193, U.N. Doc. A/34/180
(entered into force Sept. 3, 1981).
285. See Convention Against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 46, U.N. GAOR, Supp. No. 5 1, at 197, U.N.
Doc. A/39/51 (1984) (providing entire text of the convention).
286. See Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR,
Supp. No. 49, at 167, U.N. Doc. A/44/736 (1989).
287. See Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 150.
288. See id. at 52 (providing full text of the African [Banjul] Charter on Hluman
and Peoples' Rights, adopted June 27, 1981).
289. See American Convention on Human Rights, reprinted in SELECTED
HUMAN RIGHTS INSTRUMENTS, supra note 277, at 155; see also American Declaration
of the Rights and Duties of Man, reprinted in SELECTED HUMAN RIGHTS
INSTRUMENTS, supra note 277, at 173.
290. See Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.
291. See FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN
RIGHTS: LAW, POLICY AND PROCESS 9 (2d. ed. 1996) (stating that "[h]uman rights
law has thus become the most codified domain of international law").
[14:413
CONSTITUTIONALISM AND RIGHTS IN INDIA
A. THE INDIAN CONSTITUTION AND THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS
The Indian Constitution and the International Bill of Rights are
both products of the post-World War II era-a significant turning
point in furthering human rights. The United Nations General Assembly
adopted the Universal Declaration of Human Rights in
1948-when India's Constituent Assembly members were still engaged
in the task of framing the Constitution.' 2 The inspirational influence
of this great charter of liberties on the framing of India's
Constitution cannot be denied.2' Interestingly, the human rights
content in both the Indian Constitution and the International Bill of
Rights have a common provenance: the United States Constitution
and the United States Bill of Rights.2
The United States Constitution and the Bill of Rights were over
150 years old when the international human rights movement was
born. No one can seriously deny the significant contribution the
United States has made to the universalization and internationalization
of human rights.295 Many civil and political rights recognized in
the ICCPR are familiar and congenial to Indian constitutional jurisprudence.
Most of the rights articulated by the ICCPR were available
to Indian citizens twenty-nine years before India became a party to
the Covenant.
The following table shows rights contained in both the Indian
Constitution and the ICCPR. There are, however, some rights recognized
in the ICCPR-such as right to a speedy trial, " right to free

292. See Universal Declaration of Hunan Rights, supra note 10.

293. See Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 616, 637.
294. See generally M. Abel, American Influences on the Making of the Indian
Constitution, 1 J. CONST. PARLIAMENTARY STUD. 35 (1967) (stating that practically
every fundamental right provided in the United States Bill of Rights is replicated
in the Indian Constitution).
295. See generally Richard B. Lillich, The United States Constitution and International
Human Rights Law, 3 HARV. HUM. RTS. J. 53 (1990) (arguing that United
States constitutionalism has contributed significantly to the development of international
human rights law).
296. See International Covenant on Civil and Political Rights, supra note 21, at
pt. III, art. 14 (3) (c) (stating that "[i]n the determination of any criminal charge
against him everyone shall be entitled ...to be tried without undue delay") Cf sit-
1998]
AM. U. INT'L L. REV.
legal services,297 freedom from imprisonment to fulfil a contractual
obligation,2
' right to travel abroad,2 99 right to privacy, freedom

from torture, cruel, inhuman, degrading treatment or punishment""

and a right to compensation to the victims of unlawful arrest or detention°---
that are not expressly guaranteed in Part III of India's
Constitution.
pra notes 174-78 and accompanying text (noting that Article 21 of the Constitution
mandates a speedy trial for an accused in the aftermath of Maneka Gandhi).

297. See International Covenant on Civil and Political Rights, supra note 2 1, at
art. 14 (3) (d) (stating "[e]veryone shall be entitled to ... be tried in his presence,
and to defend himself in person or through legal assistance of his own choosing; to
be informed, if he does not have legal assistance, of this rights; and to have legal
assistance assigned to him .. ").C f supra note 178 and accompanying text (discussing
the Supreme Court of India's declaration of free legal services as within
Article 21 of the Constitution).
298. See International Covenant on Civil and Political Rights, supra note 21,
art. 11 (stating that "[n]o one shall be imprisoned merely on the ground of inability
to fulfil a contractual obligation."). Cf supra note 179 and accompanying text
(discussing Jolly George Varghese v. Bank of Cochin, where the Supreme Court of
India prohibited the incarceration of a judgement debtor who could not afford to
pay his debt).
299. See hIternational Covenant on Civil and Political Rights, supra note 21, at
art.12 (2) (stating "[e]veryone shall be free to leave any country including his
own.").
300. See id. art. 7 (stating "[n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful action
on his honor and reputation.").
301. See International Covenant on Civil and Political Rights, supra note 21,
art. 17 (stating that "[n]o one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment."). Cf generally supra notes 162-230 and accompanying
text (discussing the role of judicial review in improving the treatment
of prisoners, laborers, and men and women of India).
302. See International Covenant on Civil and Political Rights, supra note 2 1,
art. 9(5) (stating that "[a]nyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.").
[14:413
1998] CONSTITUTIONALISM AND RIGHTS IN I.D..i 463
RIGHTS CONTAINED IN BOTH THE INDIAN CONSTITUTION
AND THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS
ICCPR INDIAN RIGHT
CONSTITUTION
Article 8 (3) Article 23 Freedom from forced or compulsory
labor
Article 14 (1) Article 14 Right to equality
Article 26 Article 15 Protection against discrimination
on any ground
Article 25 (c) Article 16 (1) Right to have access to public
service
Article 19 (1) Article 19 (1) (a) Freedom of speech and expres-
& (2) sion
Article 21 Article 19 (1) (b) Right of peaceful assembly
Article 22 (1) Article 19 (1) (c) Freedom of association
Article 12 (1) Article 19 (1) (d) & Freedom of movement and
(e) freedom to choose one's own
residence
Article 15 (1) Article 20 (1) Freedom from ex post facto
legislation
Article 6 (1) & Article 21 Right to life and personal lib-
9(1) erty
Article 9 (2) & Article 22 & 32 Right to be informed of charges
(4) of arrest; and Right to legal
remedies if right denied
Article 18 (1) Article 25 Freedom of thought, conscience
and religion
Article 27 Article 29 (1) & 30 Right of minorities to preserve
their own language and culture
AM. U. INT'L L. REV.
B. THE EMERGENCY PROVISIONS IN THE INDIAN CONSTITUTION
AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS
The ICCPR forbids torture and summary killing in all circumstances,
but creates emergency exceptions to guarantees of due process,
free speech, and other political liberties. When an emergency
threatens the life of the nation, a government may formally derogate
from ICCPR guarantees of due process, and use preventive detention
within certain limits. °3 The emergency must be one that "threatens
the life of the nation and one whose existence is officially proclaimed.
3' i° The ICCPR, however, explicitly provides that during
such emergencies there cannot be any derogation of certain rights,
including, but not limited to, the right to life and freedom from torture.
°5 Article 4 of the ICCPR additionally provides other safeguards
against the abuse of emergency provisions in the Covenant by States
Parties."
Originally, the Indian Constitution provided for the suspension of
fundamental rights listed under Article 19 during an emergency.
Similarly, the enforcement of other rights conferred by the Constitution
could be suspended during an emergency by the President simply
giving a declaratory order to that effect. ' ' The late Indira Gandhi,
former Prime Minister of India, abused this constitutional provision
when she declared a national emergency.08 In Additional District

303. See id. art. 4, para. 1 (allowing derogation "to the extent strictly required by
the exigencies of the situation, provided that such measures are not inconsistent
with their other obligations under international law").
304. See id.
305. See id. art. 4, para. 2.
306. See id. art. 4, para. 3 (mandating that "[any State Party to the covenant
availing itself of the right of derogation shall immediately inform the other State
Parties").
307. See INDIA CONST. pt. XVIII, art. 352, reprinted in VII CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD, supra note 7, at 1, 233-34 (stating that if the
President believes a grave emergency threatens India's security, he may, with discretion,
declare a state of emergency).
308. See Nanda, supra note 157 (repudiating Indira Gandhi's justification for
declaration of emergency).
464 [14:413CONSTITUTIONALISM A.ND RIGHTS LV IND.I
Magist-ate v. Shivkant Shukla, "
 the Indian Supreme Court unfortunately
upheld Indira Gandhi's Emergency and refused to issue a writ
of habeas corpus for the enforcement of the plaintiff's constitutional
rights.1'0
Once the government revoked the Emergency in 1977, the Janata
Party came to power and there was a vociferous public demand for
amending the Constitution's emergency provisions to prevent future
abuse. The Forty-fourth Constitution (Amendment) Act ensued.'
This Act crucially changed the provisions pertaining to the suspension
of fundamental rights during an emergency. Under this Act,
there can be no suspension of the rights conferred by Articles 20 and
21 during an emergency declared on any ground. Further, as a result
of this amendment, laws unconnected with an emergency can be
challenged in a court of law during the emergency."2 These changes
have made the constitutional provisions consistent to some extent
with the ICCPR."3
As a party to the ICCPR, however, India needs to continue to improve
its human rights record to conform with all of the ICCPR's
provisions. Among the several recommendations made by the Human
Rights Committee in this regard is one requiring India to main-

309. A.I.R. 1976 S.C. 1206.

310. See Sripati, supra note 14, at 106-07 n.105 (providing a detailed explanation
of Additional District Magistrate v. Shi vkant Shlkhl).
311. See INDIA CONST. pt. XVIII, art. 359, cl. 1, reprinted in VII
CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 7, at 1, 238-39 n.8
(substituting "the President may by order declare that the rights to move any court
for the enforcement of the rights conferred by Part Ill" to "the President may by
order declare that the rights to move any court for the enforcement of such the
right conferred by Part III (except Articles 20 and 21) .. "); Sripati, supra note
14, at 107 n.107 (stating that as a result of the 44th Amendment, Article 21 can no
longer be suspended during the proclamation of an emergency).
312. See INDIA CONST. pt. XVIII, art. 358, cl. 2 (a), reprinted in VII
CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 7, at 1. 238 (stating
that "[n]othing in clause 1", which notes that nothing in Article 19 shall restrict the
power of the state to make any law during an emergency "shall apply to any law
which does not contain a recital to the effect that such law is in relation to the
proclamation of emergency in operation when it is made").
313. See, e.g., hIternational Covenant on Civil and Political Rights, supra note
21, at pt. III, art. 9, cl. 2 (stating "[e]veryone has the right to liberty and security of
person").
1998]
AM. U. INTL L. REV.
tain a register of detainees being held under preventive detention
laws.3 4 This recommendation deserves to be implemented without
delay.
C. THE INDIAN CONSTITUTION AND THE INTERNATIONAL
COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
The United Nations drafted the ICCPR and ICESCR for acceptance
by the states. Many states attained independence in the aftermath
of World War II. After tasting the bitter experience of foreign
subjugation, these newly independent states zealously safeguarded
their hard-won freedom. Specifically, these states strongly opposed
the replication of their colonial experiences. Consequently, the
ICCPR and ICESCR show great deference to state sovereignty."'
These newly independent states chose to follow the model of the
welfare state as opposed to the liberal state. The ICESCR therefore
requires states to recognize the right of all human beings to social security;"
' the right to work 17 and to receive equal pay for equal
work;"' the right to leisure; 9 the right to an adequate standard of
living, including food, clothing, and housing;2 0 and the right to education."'
States that are parties to this instrument must realize those

314. See Emma Blower, Rights and Wrongs, FRONTLINE, Oct. 3, 1997, at 47.
315. See Alessandra Luini Del Russo, International Law of Human Rights: A
Pragmatic Appraisal, 9 WM. & MARY L. REV. 749, 751-53 (1968) (criticising the
low level of compliance required under the ICCPR and ICESCR for Member
countries).
316. See International Covenant on Economic, Social and Cultural Rights, sapra
note 22, pt. III, art. 9 ("The States Parties to the present Covenant recognise
the right of everyone to social security, including social insurance.").
317. See id. art. 6 ("The States Parties to the present Covenant recognize the
right to work .... ").
3 18. See id. art. 7 (a)(i) ("The States Parties ... recognize the right of... remuneration
which provides all workers a minimum with: fair wages and equal remuneration
for work of equal value without distinction of any kind .... ).
3 19. See id. art. 7 (d) ("The States Parties ... recognize the right of everyone to.
. rest, leisure and reasonable limitation of working hours.").
320. See id. art. 11 ("The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself and his family, including
adequate food, clothing and housing, and to the improvement of living
conditions.").
321. See id. art. 13 (1) ("The States Parties to the present Covenant recognize
466 [14:413
CONSTITUTIONALISM. AND RIGHTS iv IDI.46
rights "progressively" to the "maximum of their available resources."
32
Like other newly independent states, India was predestined to be a
welfare state deeply committed to twentieth century socio-economic
goals. Indeed, the Indian Constitution-a social document-articulates
certain socio-economic responsibilities of the state in the form
of Directive Principles of State Policy.'23 Accordingly, some provisions
of Part IV of the Indian Constitution, which contains the Directive
Principles, correspond to the economic and social rights recognized
in ICESCR. The following table provides the relevant
sections of the ICESCR and the corresponding Directive Principles
of the Indian Constitution.
RIGHTS CONTAINED IN BOTH THE ICESCR AND THE
INDIAN CONSTITUTION
ICESCR INDIAN RIGHT
CONSTITUTION
Article 7 (a) (I) Article 39 (d) Prescribing equal pay for equal
work
Article 7 (b) Article 42 Ensuring just and humane
working conditions
Article 10 (2) Article 42 Providing for maternity relief
Article 6 (1) Article 41 Providing right to work
Article 10 (3) Article 39 (f) Protecting children and youth
against exploitation
Article 13 (2) Article 45 Mandating free and compulsory
(a) education for children
Article 7 (a) (ii) Article 43 Providing work conditions that
ensure a decent standard of life
Article 11 Article 47 Ensunng an adequate standard
of living and public health
the right to everyone to education.").

322. International Covenant on Economic, Social and Cultural Rights, supra

note 22, pt. II, art. 2, para. 1.
323. See supra notes 52-59 and accompanying text (discussing the Directive
Principles of State Policy).
1998] 467
AM. U. INT'L L. REV.
The Supreme Court of India has incorporated into fundamental
rights some of the Directive Principles listed above. For example, in
Francis Coralie Mullin v. Union Territory of Delhi,124 the Court declared
that "the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessities of
life such as adequate nutrition, clothing and shelter over the head.'..
D. INTERNATIONAL HUMAN RIGHTS LAW HAS INFORMED INDIAN
CONSTITUTIONAL JURISPRUDENCE
The protection of human rights by domestic courts is perhaps the
most effective method of strengthening human rights in the world.
Indeed, "[j]udges and lawyers have a duty to familiarise themselves
with the growing international jurisprudence of human rights. So far
as they may lawfully do so, they have a duty to reflect the basic
norms of human rights in the performance of their duties."'' 6 In a
number of common law countries, domestic courts refer to international
treaties ratified by their country as a source of guidance in
constitutional and statutory construction, as well as in the development
of the principles of the common law. 27 In India, such international
influences are recognized and admitted. The Supreme Court of
India has often cited international declarations and treaties in support
of its interpretation of the Constitution.
In Preni Shankar v. Delhi Administration,' the Court ruled that
freedom from undue restraint and handcuffing fell within the wide
ambit of Article 21 of the Constitution. Significantly, the Court emphasized
that it would not forget the "core principle[s]" found in Article
5 of the Universal Declaration of Human Rights, and Article 10
of the ICCPR. 29 In Sheela Barse v. Secretary, Children's Aid Soci-

324. A.I.R. 1981 S.C. 746, 753.

325. Id. at 753.
326. Sripati, supra note 14, at 130 (citing HARARE DECLARATION OF HUMAN
RIGHTS, reprinted in 2 DEVELOPING HUMAN RIGHTS JURISPRUDENCE: A SECOND
JUDICIAL COLLOQUIUM ON THE DOMESTIC APPLICATION OF INTERNATIONAL
HUMAN RIGHTS NORMS 9, 12 (1989)).
327. See, e.g., Newcrest Mining Ltd. v. Commonwealth of Australia, 1997 AnsI.
High Ct. LEXIS 52, 338 (citing Universal Declaration of Human Rights).
328. A.I.R. 1980 S.C. 1535.
329. Id. at 1537.
468 [14:413
CONSTITUTIONALISM AND RIGHTS IX IVDI.4
ety,330 a case involving child abuse, the Court reminded the Indian
government that as a signatory it has an obligation to implement the
ICCPR provisions."' In a more recent decision, the Court articulated
the right to compensation for the unlawful deprivation of Article 21,
pointing out that such a construction was in accord with the
ICCPR.332
The Court has also used environmental norms to support its interpretations
of the Constitution. "' All of these decisions reflect the
Court's keen awareness of India's international obligations and the
Court's predilection to use international human rights and environmental
norms to inform Indian constitutional law.
E. USE OF CUSTOMARY INTERNATIONAL LAW
Analogizing English common law, the courts in British India applied
common law doctrines in many fields.'" Since the Constitution
provides for the continued operation of the law in force immediately
preceding its commencement,3"5 there is arguably no change even
after independence, and courts are free to incorporate customary international
law into India's municipal law.', While the Court has
used United Nations declarations and treaties as sources of guidance
in interpreting the Constitution, it has rarely resorted to using principles
of customary international law to establish independent rules of
decision in its cases. For instance, although the prohibition of torture

330. A.I.R. 1987 S.C. 656.

331. See Sheela Barse v. Secretary, Children's Aid Soc'y, A.I.R. 1987 S.C. 656,
658 (citing Article 24 of the ICCPR).
332. See Nilabati Behera v. Union of India, A.I.R. 1993 S.C. 1966.
333. See Sripati, supra note 14, at 128-29 (discussing M.C. Melta v. Union o]"
India and Law Society, where the Court cited to United Nations resolutions and
conference records as justifications for carving an environmental dimension to Article
21 of the Constitution).
334. See S.K. AGRAWALA, INTERNATIONAL LAW: INDIAN COURTS AND
LEGISLATURE 12-13 (1965).
335. See INDIA CONST. pt. XXI, art. 372. para. 1. reprinted in VII
CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 7, at 1, 258 (concerning
the "continuance in force of existing laws and their adaption").
336. See AGRAWALA, supra note 334, at 12-13.
1998] 469
AM. U. INT'L L. REV.
is a norm of customary international law337 and thus, arguably, a part
of Indian domestic law, the Supreme Court has made no mention of
customary international law in many cases involving prisoners'
rights. Rather, the Court has explicitly stated that torture or cruelty is
repugnant to the principles of non-arbitrariness, reasonableness, and
fair procedure implicit in Articles 14, 19, and 21, respectively, of the
Indian Constitution.338
In a recent case involving pollution caused by sulfuric acid plants,
however, the Court displayed radically new thinking.' 9 Such a
change opens new vistas for the enforcement of international human
rights law and environmental law. Holding that the "polluter-pays"
principle is a part of India's domestic law, the Court ordered the respondent
chemical companies to compensate the affected individuals
and pay for the restoration of the environment.3 40 Following the international
deliberations culminating in the Earth Summit at Rio in
1992, the Court's premise was that "sustainable development has become
an accepted part of customary international law. 34' The Court
conceded that although the contours of the concept of sustainable development
had not yet crystallized, the polluter-pays principle was
clearly its essential feature. 42 The Court reasoned that "a rule of
customary international law that is not contrary to domestic law may
be deemed to have been incorporated therein. 343 On this basis, the
Court concluded that the "polluter pays" principle was an enforceable
part of the corpusjuris of India. The Court also cited the Indian
Constitution and various environmental acts to support its decision. '

337. See Lillich, supra note 295, at 72-73 & n.132 (citing Section 702 of the Restatement
(Third) of the Foreign Relations Law of the United States).
338. See, e.g, Sunil Batra v. Delhi Admin., A.I.R. 1978 S.C. 1675, 1690 (out lawing
cruelty and torture in prisons pursuant to Articles 14, 19, and 21 of the
Constitution, which provide protection against unreasonable restrictions and arbitrary
deprivations).
339. See Shanmuganathan & Warren, supra note 198, at 399 (discussing Indian
Council for Envtl. Action v. Union of India).
340. See id.
341. Id.
342. See id. at 399-400.
343. Id.
344. See id.
470 [14:413
CONSTITUTIONALISM AND RIGHTS IN INDIA4
This rationale, however, is not tenable as none of the authorities relied
upon by the Court makes any direct reference to the concept of
sustainable development or the "polluter-pays" principle. Perhaps the
Court adopted this stance because it is neither fashionable nor prudent
to admit to the exclusive use of non-domestic laws as bases for
a decision. The apparent, albeit faulty, use of the law of the forum is
more in keeping with principles of state sovereignty. Nonetheless,
this decision is significant for both the international criteria that the
Court looked to as a source of domestic law on environmental issues
3 5 and the great strides the Court has taken in providing effective

access, including redress and remedy to protect individuals from the

consequences of environmental harm or damage.
It is important to understand that during the framing of Part III of
India's Constitution, the founding fathers consciously decided to
adopt ideas from foreign sources. - ' During the last five decades,
these foreign precepts have had lasting effects on the Indian legal
and political culture. Indeed, Indian nationals have not resisted these
precepts as alien ideas; rather, they have welcomed them as their
own. It is imperative that in the next century, the Indian Judiciary not
turn inward in ways that "deny the rich traditions of the rule of law
beyond [Indian] borders."'"" The Judiciary must continue to nourish
Indian constitutional thought with wholesome international norms
and principles.
IV. SUPREMACY OF THE CONSTITUTION
In several nations in the world today, the source of legitimacy for
liberal democratic values is a written constitution."' For India, the

345. See Jack Greenberg, The Widening Circles of Freedom, 8 HUM. RTS., Fall
1979, at 10, 45 (discussing the use of international legal criteria as sources of
United States human rights laws).
346. See supra notes 37-59 and accompanying text (discussing the United States
and Great Britain's influence on the framing of India's Constitution).
347. Gordon A. Christenson, Using Human Rig/ts Law to Intbrmn Due Process
and Equal Protection Analyses, 52 U. CIN. L. REV. 3, 35 (1985).
348. But cf British Information Services, Britain in the USA (visited Oct. 17,
1998) <http://,vwv.britain.nyc.ny.us/> (noting that Britain, unlike other countries,
does not have a written constitution set out in a single document); David Winder,
Little Known British Tradition: Secrecy. CHRISTIAN SCI. MONITOR, Dec. 17, 1986,
at 1 (explaining that Britain, in addition to being the "mother of Parliaments, ...
1998] 471
AM. U. INT'L L. REV.
Constitution was a political symbol memorializing her triumphant
struggle for freedom from British rule. As mentioned earlier, India's
founding fathers, from the very early days of the freedom struggle,
consciously decided to model free India along the lines of a western
liberal democracy. 49 Therefore, when independence for India became
imminent, they chose to place their faith in a constituent assembly to
formulate a constitution that institutionalized their political triumph.
The founders set about their task of constitution-making "with a
relative purity, with a Rawlsian reflective equilibrium in an effort to
do justice to all.,,150 The Constitution's commencement in 1950,
therefore, heralded a new constitutional dawn into which the Republic
was launched: an era of political freedom, freedom from exploitation,
and justice-social, economic, and political-to the impoverished
and illiterate masses.
Today, on the eve of the fiftieth anniversary of the Constitution, it
is appropriate to ponder whether these liberal democratic values and
the Constitution as a provenance for those values have gained legitimacy.
The answer, sadly, is yes and no. Today, all political parties
and citizens share the opinion that a political democracy must be the
foundation of the Indian State. T'5 In Republican India, democracy has
found a hospitable soil, electoral legitimacy has been a fundamental
requirement for political survival, the Indian army has remained
apolitical, and the judiciary has, of late, come to exercise its constitutional
powers with verve and aplomb. While these are heartening
features of the Indian polity, they constitute only a part of the story
of constitutionalism in India. However, the Constitution, in the sense
of the supreme law of the land, as a settled consensus accepted by all
shades of political opinion, is not yet entrenched in the Indian political-
legal soil. The process may have begun, but some of its vaunted
features, such as the parliamentary form of government, socialism,
also laid the foundations for representative democracy and individual liberty with
the signing of the Magna Carta in 1215").

349. See supra notes 40-41 (discussing India's rejection of the United States
presidential system).
350. Rajeev Dhawan, Amending the Constitution, HINDU, May 8, 1998.
351. See, e.g., YOGENDRA K. MALIK & V.B. SINGH, HINDU NATIONALISTS IN
INDIA: THE RISE OF THE BHARATIYA JANATA PARTY 38 (stating "the BJP leadership
... committed itself to nationalism and national integration, democracy, positive
secularism, and value based politics").
472 [14:413
CONSTITUTIONALISM AND RIGHTS IN IX.DL.I
secularism, and legitimate rights of minorities, have become debatable
and abrasively so.
Furthermore, since 1950 India's politicians have slowly destroyed
the institutional morality required to make the parliamentary system
work.352 Akin to bad workmen who blame their tools, they frequently
have resorted to tampering with the Constitution rather than reflecting
on their dismal performance and disciplining their own lawless
behavior.3 53 Indian politicians' actions therefore parallel South Asian
politicians' actions, resulting in the usurpation of constitutionalism
by those in power.3 In India, the tragic consequence of this political
culture is a steady stream of amendments in the name of progress
that have mutilated the Constitution. One eminent scholar writes:
"Sometimes [the constitutional amendments] have been for the better;
sometimes, for the worse. [Today, w]ith 78 changes, the Constitution
has almost been declared a periodical, whose fate has been
determined by prime ministerial editors and judicial sub-editors.""
In the first twenty-five years of its existence, the Constitution was
amended almost forty times.:3 The controversial amendments during
this period related primarily to the fundamental right to property
since it was this right that dominated litigation before the Supreme
Court.5 During those days, the Court aligned itself with the propertied
classes and displayed an excessive zeal to protect property
rights. The executive exploited this situation to its advantage. It portrayed
the Constitution and the Court as obstacles in changing structures
of economic power. The executive utilized this portrayal to
further justify its constitutional amendments and populist pro-

352. See Editorial, Rebuilding India, HINDU, Apr. 10. 1997.

353. See id.
354. See Coomaraswamy, supra note 221, at 160 (noting how the use of constitutions
is instrumental for those who wield state power).
355. Dhawan, supra note 350.
356. See THOMAS, supra note 307, at 86 (stating that "[the Indian constitution is
easily amended following the passage of the 42' Amendment in 1976 during the
Emergency, the Indian Supreme Court determined that nothing in the Indian Constitution
is beyond the amendment process, not even fundamental rights.").
357. See supra notes 151-55 and accompanying text (discussing property rights
litigation and amendments).
1998] 473
AM. U. INT'L L. R
grams. "8 What ensued were ominous developments: "assaults on the
independence of the judiciary," vitriolic parliament-judiciary "confrontation,"
and an erosion of the judiciary's image in the public
eye.359 Until the mid-1970s, the Indian citizenry viewed the Supreme
Court as a bastion of the rich and wealthy. Essentially, the Court
lacked legitimacy and a solid foundation of support by the peoplesomething
that it enjoys today. The ideology of constitutionalism as
spelled out by the courts was slowly but surely discredited in the
eyes of the public. During times of crisis, as in 1975 when Indira
Gandhi unilaterally declared Emergency and subverted the constitutional
processes to remain in power, the Court sadly lacked the legitimacy
to reinforce the supremacy of the Constitution. 60 It had
miserably failed thereby to deliver its most solemn constitutional
function.
Constitutional amendments enacted during the period of 1975 to
1995 reflect both a subversion of constitutional processes by politicians
for personal aggrandizement and a concern to safeguard the
Constitution's efficacy from the growing trend of legislators' lawlessness.
The Emergency's notorious Forty-second Amendment
symbolized the former trend,"' while the post-Emergency's historic
Forty-fourth amendment-designed to undo the damage inflicted by
the Forty-second Amendment-represented the latter trend.' 2 Un-

358. See generally AUSTIN, supra note 50, at 98-101 (discussing the problems
encountered in establishing fundamental rights for Indian citizens); DAS, supra
note 147, at 29-63 (discussing the Parliamentary-judiciary controversy over the
property rights).
359. See Dhawan, supra note 350 ("Nehru and Indira Gandhi were uncompromising
resulting in confrontations with the Judiciary, assaults on the independence
of judges and judicial confrontation in the form of the nebulous 'basic structure' of
1973 ....").
360. See Worst Legacy of India Persists, supra note 27 (opining that India
"ceased to be a democracy" during Indira Gandhi's Emergency).
361. See THOMAS, supra note 307, at 81 (noting that "[t]he 42"J Amendment
suspended the writ of habeas corpus and made the reasons for preventive detention
state secrets"). Therefore, "during the 1975-77 Emergency, a citizen could not appeal
to the courts because he did not now the reason for his arrest and the government
did not have to disclose it." Id.
362. See id. at 82, 83 (stating that the 44" Amendment repealed the 42'
Amendment by declaring that Article 21 could not be suspended during emergencies
and by rejecting "the 42 d Amendment's term 'internal disturbance' and rein-
[14:413
CONSTITUTIONALISf AND RIGHTS iN INDIA
fortunately, the Forty-fourth Amendment was not a spectacular success,
and the successive governments-including the current onehave
not implemented some of its provisions liberalizing preventive
detention.6 ' Legislators of the Rajiv Gandhi-era of the mid-1980s
enacted the much-hyped Anti-Defection (Fifty-second Amendment)
Act with the ostensible purpose of checking defections and "floorcrossing"
by parliamentarians.i3 Like many other laws on the statute
book, it was rendered otiose because of the political maneuverings of
politicians of all hues.
A. SHADES OF FASCISM-THE CURRENT PROPOSALS FOR
AMENDING THE CONSTITUTION
"Constitutional amendments are no purer than the politics which
animates them."3'65 "[They] are mischievously conceived, deviously
designed and mal-interpreted in a partisan manner even if interlaced
with genuine concern." 3' 66 Viewed in this light, the BJP government's
proposals for three major constitutional changes are anything but politically
neutral.
The BJP's first proposal is to abandon the current parliamentary
form of government and to opt for a pattern akin to the presidential
form in order to ensure that the Prime Minister is not rendered a lame
duck by a hung Parliament. 6 This is yet another classic instance of
usurpation of constitutionalism, whereby crafty politicians lusting for
unfettered powers project the Constitution as an obstacle to providing
stable governance. This stability slogan is less than convincing,
troducing "the term 'armed rebellion' as the justification for the declaration of
emergency").

363. Id. at 83 (criticising the Janata Party's extensive emergency powers despite
the repeal of the 42" Amendment in 1979): Dhawan. supra note 350 ("To this day,
the liberal preventive detention amendments of 1979 have not been implemented
with a helpless Supreme Court surrendering the issue to political cowardice.").
364. See Dhawan, supra note 350.
365. Id. See, e.g., V. Krishna Ananth, Wfomen s Bill and OBC Politics, HINDU,
July 15, 1998 at 13 (analyzing the politics surrounding the recent Women's Reservation
Bill, the proposed eighty-third constitutional amendment, dealing with reservation
of seats for women in Parliament).
366. Dhawan, supra note 350.
367. See id. (stating "[t]he first change is to ensure longer, stable terms for the
Prime Minister, even if it means moving to some form of a presidential system.").
1998]
AM. U. INT' L. REV.
singularly hollow, and has an ominous ring to it. Taken to its logical
conclusion, such sentiments and fears pave the way for totalitarianism.
Those conversant with world history cannot ignore the striking
similarity between the reality facing India, and what Benito Mussolini
and his fascist brigade-the black shirts-accomplished in Italy
by conjuring up the specter of fear and recommending the concentration
of power in the hands of the "wise. 1 6
' There can be no doubt

that if the proposal for a presidential pattern captures the imagination

of the gullible and ignorant section of the public, the BJP and its saffron
brigade will have the potential to perpetrate a disaster much
greater in magnitude than what Mussolini accomplished in Italy.
Other practical reasons also render this proposal an unsound one.
First, after much deliberation, India's founding fathers opted for a
parliamentary system since it proved successful prior to independence
in some of the provinces under the Government of India Act,
1935.369 Second, separation of powers between the executive and
legislature is the hallmark of a presidential democracy. In India,
however, given the deep divisions in the Lok Sabha-the house of
the people-there is the potential for an utter breakdown of consultation
and debate in Parliament, leading to legislative paralysis and
paving the way for usurpation of all power by the Executive. The
consequences of such a scenario would affect the very life of the Republic,
as well as the country's stability.
The second proposal for change is targeted toward the judiciary to
render it toothless. The BJP government is currently sounding a shrill
and false alarm of judicial dictatorship and tyranny, and is unfairly
indicting the Supreme Court's judicial activism. 7° India's current
crop of criminal politicians and politicized criminals are making
these devious attempts to discredit the Judiciary only to avoid personal
accountability. In this era of unabated greed, the courts have

368. See C.R.S. HARRIS, ALLIED MILITARY ADMINISTRATION OF ITALY 1943-

1945, at 48 (1957) (attributing the killing of fascism to the fall of Mussolini).
"Many of the best known elements in the country had at one time been drawn to it
[fascism] and, for fear of worse, had often given it their passive support." Id.
369. See Alladi Kuppuswami, A Remedy worse than the Disease, HINDU, July
16, 1998, at 12 (stating the case for a parliamentary, rather than a presidential.
system in India).
370. See Dhawan, supra note 350 (arguing against "tinker[ing] with judicial review").
476 [14:413
CONSTITUTIONALISM AND RIGHTS i.INDIA47
fearlessly upheld the rule of law"' and brought to the dock an array
of public officials including a former Prime Minister, several exgovernors,
ministers, and bureaucrats." Therefore, any attempt to
curtail the Judiciary's legitimate role in the polity would destroy the
two fundamental correlatives of constitutionalism, vis-a-vis legal
limits to arbitrary power and the complete political responsibility of
the government to the governed.
The third proposal concerns the powers of the central government
to impose "President's Rule" under Article 356 of the Constitution.'
Under Article 356 of India's Constitution, the federally appointed
governor can recommend the dismissal of a state's elected legislature
and the imposition of direct rule from the central government when
"governance of the state cannot be carried out in accordance with the
constitution."3' 7 The numerous instances of the obscene use of Article
356 to settle political scores by the ruling party at the central government
constitutes yet another illustration of the debasing of a cardinal
constitutional value-federal fair play."' The framers of the
Constitution had envisaged state governors to be non-partisan men
and women of eminence, truly "senior" citizens. Unfortunately, successive
governments run by the Congress Party have contributed to

371. Id. (stating that the judiciary "has stepped in to ensure that institutions of
governance, in these troubled times, at least meet the discipline of a widely construed
rule of law").
372. See supra notes 241-45 and accompanying text (discussing instances of Official
corruption).
373. See THOMAS, supra note 312, at 75, 89-97 (providing a thorough discussion
of "President's Rule"). When the Governor of a State is satisfied that there is a
constitutional breakdown in the state, he can advise the President to dissolve the
state legislature and bring the state directly under the President's rule. See hi. This
is called state emergency or "President's Rule." See id.; see also INDIA CONST. pt.
XXVIII, art. 356, reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 235 (detailing the provisions in case of failure of constitutional
machinery in the States). Cf R. Krishnakumar, Article 356 Should Be
Abolished, FRONTLINE, July 17, 1998, at 24 (interview with Justice V.R. Krishna
Iyer, former judge of the Supreme Court) ("[S]peaking for myself, Article 356 deserves
to be abolished ....").
374. INDIA CONST. pt. XXVIII, art. 356. reprinted in VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 235.
375. See Krishnakumar, supra note 373, at 25 (providing Justice Iyer's opinion
that "in over 100 cases, starting with the outrage perpetrated in Kerala in 1959,
there has never been a legitimate use of Article 356").
1998] 477
AM. U. INT'L L. REV.
the rampant politicization of the gubernatorial posts by appointing
servile individuals with strong party loyalties. 76 Inevitably these individuals
have, at the slightest instance of trouble in their states,
dashed off a communication to the President recommending dissolution
of the state legislature and declaration of president's rule. In the
past, several state governments ruled by parties others than the one at
the central government have been ousted by the President on patently
flimsy grounds."" Imposing President's Rule entails suspension,
however temporary, of the people's right to govern themselves.
Therefore, there can be no doubt that the framers of the Constitution
reserved the invocation of this article only for the rarest of instances.
37" In this regard, the Supreme Court's decision in S.R. Bommai
v. Union of India3 79 is indeed welcome. In Bommai, the Court
sharply limited the powers vested in the central government to dismiss
a state government and articulated the conditions under which
state governments may be dismissed.8 ° In essence, this majority decision
overturned the long tradition of holding Article 356 unamenable
to judicial review. It remains to be seen how the present
government will try to skirt this decision of the Court.
B. UPHOLDING CONSTITUTIONAL SUPREMACY
Kesavananda Bharati is a significant landmark in the history of
Indian constitutionalism for it was in that case that the Supreme
Court reaffirmed the supremacy of the Constitution vis-Ai-vis Parliament
and the Executive."' Essentially, what the Court did was to re-

376. See id.

377. See id.
378. See Sukummar Muralidharan, Of President's Rule and Trigger-happy
Politicians, FRONTLINE, July 17, 1998, at 26 (interview with Rajeev Dhavan, Senior
Advocate in the Supreme Court) ("President's Rule is supposed to be invoked
when there is a breakdown of the constitutional machinery - in other words, a paralysis
so severe that it is impossible for the State government to handle it in any
way.").
379. A.I.R. (1994) 3 S.C.C. 1.
380. See id.; Rajendra Prasad, Bommai Verdict Checked Misuse of Article 356,
FRONTLINE, July 17, 1998 (Interview with Justice B.P. Jeevan Reddy) (stating that,
before Bonniai, Article 356 was often used "indiscriminately" and was exercised
in more than 90 cases, most of which were of "doubtful constitutional validity").
381. A.I.R. 1973 S.C. 1461.
[14:413
CONSTITUTIONALISAf AND RIGHTS IN DIA49
pudiate Parliament's assertion of sovereign power to make changes
not in the Constitution, but of the Constitution. "2 "No party in power
could use its legislative majorities to abuse the constitutional processes
to convert a Republican India into a hereditary monarchy, a
secular India into a theocratic state, a federal India into an unitary
state, an India with citizens into an India consisting only of subjects."
3' 3 The Court reiterated the principle of constitutional supremacy
by articulating the doctrine of the Constitution's "basic structure."
The Court placed on high ground and beyond the reach of
Parliament's power of amendment, the Constitution's cardinal features
such as judicial review, rule of law, democracy, and secularism.
The issue before the Court was the validity of certain controversial
constitutional amendments that ousted the Court's jurisdiction over
certain matters pertaining to the right to property. The Court held that
judicial review was indubitably fundamental and part of the Constitution's
basic structure, and therefore Parliament cannot, even by
amendment, deprive the Court of its constitutional power of reviewing
laws that purportedly fulfill the socialist aims of the Constitution,
but in practice transgress citizens' fundamental rights. " The following
passage best summarizes the far-reaching implications this
decision holds for the people of India:
This historic judicial intervention is no judicial meandering for the consumption
and manipulation by skilled law-persons. It has a structural
message for the people of India in their struggle to make power respond
more amply to the tasks of justice. For the atisudras, (untouchables) the
social and economic proletariat, the reaffirmation of the unchangeable basic
structure does not merely mark the limits of the power of the state but
also the maintenance of civil and political space within which they can
continue to articulate their struggle against the dominating groups.

382. See BAXI, COURAGE, CRAFT AND CONTENTIION, sutpra note 147, at 66.
383. Id.
384. See Kesavananda, A.I.R. 1976 S.C. at 276.
385. Upendra Baxi, Dialectics of the Face and the Mask. 35 J. INDIAN L. INST.
1,6(1993).
1998] 479
AM. U. INT'L L. REV.
C. IS THE "BASIC STRUCTURE" DOCTRINE THE LAST HOPE?
S.R. Bonmmai demonstrates that successive generations of judges
have remained faithful to the concept of constitutional supremacy.
The Court held that since secularism was a basic feature of the Constitution,
any actions of the government that undermined this principle
would be unconstitutional."' Until Kesavananda, courts used the
basic structure doctrine to test the validity of constitutional amendments.
Whereas today, under Bomma, rulers must keep in mind the
basic structure doctrine even while exercising constituent power.'"
This is indeed a powerful determination by the Court and a major
breakthrough. The Court must be commended for reestablishing the
Constitution's supremacy and reaffirming secularism as the unalterable
feature of the Indian Constitution and polity.89 Notwithstanding
criticism that the basic structure doctrine is vague, " ' it is the only
bulwark to prevent the basic tenets of a liberal social justice constitution
from being totally obliterated. Scholars elsewhere have correctly
concluded that this doctrine is not as deleterious as it is made
out to be, and that the real crisis is one of values and of unacceptable
standards of behavior. 9'
In the present situation, there is no need to review the Constitution.
Rather, Parliament needs to make reforms in electoral practices
and undertake measures to obliterate the criminalization of public
life. Furthermore, men and women with character and principles are
required to run the institutions of governance and to infuse them with
strength and vitality to meet the current crisis of constitutionalism in

386. S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.

387. See id. at 12.
388. See Muralidharan, supra note 378 ("what Bommai said is that the preservation
of the basic structure is a constitutional duty.").
389. See Prasad, supra note 380 (arguing that, in the Bonmrai decision, the Indian
Supreme Court promoted constitutional principles by clarifying the intent behind
Article 356).
390. See Dhawan, supra note 350; see generally BAXI, COURAGE, CRAFT AND
CONTENTION, supra note 147, at 62-66 (analyzing the "basic structure" doctrine as
interpreted by the Court in Kesavanada).
391. See, e.g., Dhawan, supra note 350 (stating "constitutional reforms are not
the panacea").
480 [14:413
CONSTITUTIONALISM AND RIGHTS I% VmDI4
India.392 That alone will make the Constitution work. Nothing else
will suffice.
V. HOW CAN CONSTITUTIONALISM BE
STRENGTHENED IN INDIA?
A. THE JUDICIARY AND THE SOCIAL ACTION LITIGATION
MOVEMENT
If the history of the amendment process in India represents the
usurpation of constitutionalism, then the SAL movement and its successes
represent the "innovative use" of constitutional ideologies. '
The salutary consequence of such innovative use has been the
strengthening and enhancement of liberal values. Indeed, over the
last two decades, the ideology of constitutionalism has received renewed
vigor through the efforts of SAL. In 1979, eminent scholar
Dr. Upendra Baxi presciently wrote on the newly emerging role of
the Supreme Court:
The politics of the [Supreme] Court - be it the purest politics or constitutional
adjudication or the hurly burly politics of power-sharing at times,
power-grabbing at others - represents the best hope for the millions of
Indians for a new constitutional dawn. All in all, SAL symbolises the
politics of liberation: the ruled and misruled have added to the might of
adult franchise the quiet dignity of constitutionalism in their struggle
against the myriad excesses of power.394
The following two passages capture the role that the Judiciary, as
compared to other institutions of governance, plays in the polity
twenty years later:

392. See also id. (stating "[a]part from the shadow of the basic structure doctrine
... our real problem is the basic lack of honesty across groups and mass lumpenisation
in all parties in virtually every conceivable way."); Lyla Bavadam,
Strengthen the Istitution of the Governor, FRONTLINE, July 17, 1998, at 27, 29
(interview with Fali S. Nariman, regarded as one of India's top lawyers) ("We
cannot expect the judiciary to resolve all the problems of the country and they
should not .... ).
393. Coomaraswamy, supra note 221, at 57.
394. Baxi, supra note 160, at 45.
1998]
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The judiciary is becoming formidable and asserting its place tinder the
sun. The most important development in the past two-and-a-half decades
in the Indian legal system has been the emergence of the superior judiciary
as an institution with a pivotal creative role in shaping the other constitutional
institutions. If the judiciary is allowed to go the way of the
other institutions we will have nothing left in the country.
When aggrieved citizens raise grave constitutional issues and exercise
their fundamental rights in invoking its jurisdiction, the Supreme Court is
left with little choice but to act in deference to its constitutionally prescribed
obligations. This is the reason why the Court has had to expand its
jurisdiction by, at times, issuing novel directions to the executive; something
it would never have resorted to had the other two democratic insti-
396 tutions functioned in an effective manner.
The SAL strategy has become a powerful weapon of social and
political accountability. Recognizing the crucial role of SAL, Soli
Sorabjee, India's recently appointed Attorney General, stated that in
his new position he would make "government departments understand
that in sensitive public litigation cases, the government should
not play the role of an adversary but cooperate with the petitioner
and the court to ensure that human rights of the disadvantaged and
oppressed are protected and promoted. 397
In the early eighties, SAL's predominant concern was championing
the cause of bonded and child laborers, contract and migrant
workers, rickshaw pullers, slum dwellers, children languishing in
jails, and victims of custodial violence. 9 In recent years, SAL has
become a potent instrument in exposing and checking the venality of
public officials, arbitrary and mala fide actions of government officials
for private gain, and the unholy nexus between politicians, bureaucrats
and businessmen in India. 99 The Supreme Court's activist

395. Judiciaiy Asserting its Place: Venkatachaliah, HINDU, Oct. 9, 1997, at II.
396. Haresh Khare, Judicial Activism: The Good and the Not So Good. HINDU,
Mar. 2, 1997, at 11.
397. Sabina Sehgal Saikia, Sorabjee will Advise Government on Urgent Constitutional
Amendments, TIMES OF INDIA, Apr. 9, 1998.
398. See supra notes 249-55 and accompanying text (analyzing cases decided by
the Court regarding treatment of disadvantaged people).
399. See supra notes 241-45 and accompanying text (analyzing corruption cases
482 [14:413
CONSTITUTIONALISM AND RIGHTS hV IVDL4
role serves to promote accountability at the higher levels and ensure
the fair and judicious exercise of power. Many warriors on the SAL
battlefield are social and legal activists and journalists who rightly
believe that only "PIL can expose graft in high places," that PIL is
the "the only way to fight the mighty," and that it will thereby "ensure
accountability which is paramount in public life."" It was a PIL
petition that exposed the alleged bribing of members of Parliament
during the no-confidence motion by then Prime Minister P.V. Narasimha
Rao. This case is currently before the Delhi High Court.
Another PIL case concerned the out-of-turn petrol pump allotment
case, which led to a Minister being fined for his mala fide decisions
taken in office.40 ' Yet another petition spurred the Court to issue directions
to the government to establish consumer courts in every district
of the country.02- Baxi comments on the movement's success:
The SAL processes have put [holders of executive power] in unpredictable
difficulties that the traditional political processes leave no scope,
tactics or tools to combat. The SAL is not merely exposti litigation; it litemily
takes the mask off the face of power which does not want to be held
within the law, power that is colonially repressive and at times openly
brutal. 3
Current debates focus on crude attempts to limit the SAL movement
by imposing a fee for each PIL case and introducing legislation
to regulate PIL.4 Some critics have accused judges of exercising
bias in selecting cases and choosing their litigants."* The Court's
detailed directives to the Executive, and its involvement in the implementation
of its orders, have led to criticism that the Court is actually
taking over the administrative function and violating the docexposed
through SAL activities).

400. Mitra & Chakravarty, supra note 241, at 26.

401. See id.
402. See id.
403. Baxi, supra note 385, at 9-10.
404. See Mitra & Chakravarty, supra note 241, at 23: see also Khare, supra note
396, at 11.
405. See S.K. AGRAWALA, PUBLIC INTEREST LITIGATION IN INDIA: A CRITIQUE
17,26 (1985).
1998]AM. U. INT'L L. REV.
trine of separation of powers .4
0 The courtroom today might be a forum

for arraignment of the political class under the guise of Public

Interest Litigation. Some say Public Interest Litigation has transmuted
into "Publicity Interested Litigation" and "Political Interest
Litigation. 4 °7 While some of these concerns are legitimate, all those
concerned must oppose any demand for the banishment of SAL.
While it is true that judges are no imperium in imperio, charges of
judicial dictatorship and terrorism are baseless. An open-minded response
by the Court to the legitimate criticism that it has evoked is,
however, imperative. Some suggestions of strengthening the Court's
post-judgment monitoring and the cautious use of the Court's contempt
power merit serious consideration in this regard.
Measures must be taken to cut the High Courts' and the Supreme
Court's overwhelming caseloads. Modernizing the judicial infrastructure
at all levels of the judiciary with photocopiers, tape recorders,
computers with Internet connections, and other gadgets, will allow
the Judiciary to effectively take on the challenges of the twentyfirst
century.
During the Republic's opening decades, the Judiciary diminished
its legitimacy, and that of the Constitution and constitutional processes,
by siding with the landed gentry, sympathizing with elite concerns,
and safeguarding elite rights such as the right to property. In
fact, until the very last days of the Emergency, society had no faith in
the constitutional process; rather it saw the process as favoring the
propertied classes while ignoring the plight of the poor and downtrodden.
Critics attacked the Court for being overly deferential to the
executive, and regarded the Court's judgment in Shivkant Shukla, the
habeas corpus case, as a new landmark in judicial pusillanimity."
In the aftermath of nineteen-month Emergency, the Court began to
take people's suffering seriously. The Supreme Court addressed ac-

406. See Khare, supra note 396, at 11.

407. Mitra & Chakravarty, supra note 241, at 26.
408. See Soli Sorabjee, Protection and Promotion of Fundamental Rights by'
Public Interest Litigation in India, 51 REV. INT'L COMM'N OF JURISTS 31, 37
(1993) (offering suggestions on changes to increase the efficiency and legitimacy
of the Court).
409. See A.I.R. 1976 S.C. 1207; see supra note 156 (discussing Additional District
Magistrate v. Shivkant Shukla).
[14:413CONSTITUTIONALISM .4AND RIGHTS IV INDI'
T
ual struggles taking place in India, and constitutional values became
relevant to the citizenry. A heightened legitimacy to constitutional
values such as human dignity, social justice, environmental justice,
freedom from torture, freedom from exploitation, and liberty of
thought and expression followed."1 "
It is true that the judiciary alone cannot wipe the slate of all evils
and Judges can err in advancing the rule of law. It is, however, imperative
that in the years to come, the Judiciary creatively utilize
numerous constitutional provisions to protect important values found
in India. Only then can there be the hope of a new constitutional
dawn for the illiterate and impoverished masses in India.
B. CAMPAIGN TO ERADICATE ILLITERACY
The great strides India has made in providing higher education are
matched only by its conspicuous failure to universalize primary education.
This fact is tellingly revealed in a report that ranks India as
one of the most illiterate and least gender sensitive countries in the
South-Asian region."' It is a shame that on the eve of the fiftieth anniversary
of the Indian Constitution, its mandate to the State, namely,
"to provide within a period of ten years" from its commencement,
"free and compulsory education for all children,'" "2 has remained a
chimerical claptrap. The report also rightly warned of a catastrophe if
the region fails to universalize basic education within the next five
years.41' For too long, poverty has been blamed for all the social ills
afflicting society. In fact, there are several countries much poorer
than India that have strikingly higher literacy rates, including Kenya,

410. See supra Pt. II.A (discussing the role the Indian Supreme Court played in
expanding Indian's fundamental rights).
411. See Largest Number of Adult Illiterates in India: Report. XINHUA NEWS
AGENCY, Apr. 4, 1998, available in LEXIS, News Library, Curnws File (discussing
South Asia Human Development Report for 1998) [hereinafter Literaci Report].
412. INDIA CONST. pt. IV, art. 45, reprinted it, VII CONSTITUTIONS OF THE
COUNTRIES OF THE WORLD, supra note 7, at 1, 79.
413. See Literacy Report, supra note 411 (noting further that the region has
"slipped behind all other regions of the world including subsahara in human development
levels").
1998]
AM. U. INT'L L. REV.
Rwanda, and Vietnam.44 In India itself, however, in the State of
Kerela, the Communist party successfully achieved a one hundred
percent literacy rate among its population.41 ' Thus, India should
model itself after the State of Kerela and disallow political indifference
in the area of education to ruin India.16 Indian governments
have prioritized limiting their actions and concerns to higher education.
Specifically, the government has granted large subsidies to state
universities and colleges."7 Consequently, the state has denied basic
education to the vast majority of the poor who lack money and liberally
subsidized the education of those who have money."
The Indian government must immediately jettison this misguided
approach. The government needs to significantly increase spending
on primary education, and progressively withdraw many of the subsidies
granted to public universities. In particular, the government
should leave the responsibility of higher education to the marketplace
and take full responsibility over the provision of primary education.
A national movement led by non-government organizations
and the thoughtful citizens should be launched to exert pressure on
the government to implement the Constitution's mandate. The mere
addition of education to the list of fundamental rights in the Constitution,
however, cannot help attain the goals of universal elementary
education in the country. Legally sanctioning officials may advance
educational priorities and policies in India. Yet the country will not
be fully literate and well educated until the leadership and citizenry
undertake a massive campaign for the eradication of illiteracy.
In the next millennium, democratic institutions may face heavy
criticism if insecurity and frustration with ineffective government

414. See Kaushik Basu, Paving for Education, INDIA TODAY, Nov. 17, 1997, at
25 (asserting that, while India excels in higher education, primary education has
thus far been a "failure").
415. See Kenneth J. Cooper, In India's Kerala, Quality of Life is High but Opportunit
is Limited, WASH. POST, Jan. 3, 1997, at A35 (discussing the State of
Kerala).
416. See Basu, supra note 414 (arguing that the Indian Government must act to
improve the nation's education system).
417. See id. (suggesting that the Indian Government must end its huge subsidies
to state universities and colleges).
418. See id. (recommending that higher education be left to the marketplace).
486 [14:413
CONSTITUTIONALISM AND RIGHTS IN INDIA
continues to toll in India. Authoritarianism and fascist formations are
more likely to thrive among an illiterate and ignorant populace than
among an educated citizenry. Therefore, if the government universalizes
basic education, India's economic and social development
would accelerate and its survival as a functioning democracy would
be more certain.
C. NATIONAL SECURITY AND FUNDAMENTAL RIGHTS
Grave human rights violations in various parts of India such as
Assam, Kashmir, and Punjab, have been swept under the statist rug
in the name of national security.41+ With the anti-minorities, particularly
anti-Muslim, rhetoric running high in the prevailing vicious political
climate, it is arguable that the government can, under the guise
of ridding the country of "traitors" and "outsiders," imperil the lives
and properties of minorities.4' To ensure the nation's security and
integrity, the law must be enforced against persons who are admittedly
terrorists and unquestionably engaging in subversive acts."'
Vigilance in anti-terrorist enforcement, however, should not ensnare
individuals viewed as terrorists due to their membership in minority
religious groups. In fact, "figures furnished by the Union Home
Ministry in October 1993 show that over 50,000 humans were tormented
with Tmil Nadu Prevention detention, while the rate of conviction
was a petty 0.81 per cent."2- While debunking this myth,
former Chief Justice Venkatachaliah, emphasized that "national security
and human rights are not antithetical, and efforts should be
made to combine them for the larger benefits of the nation as well as
citizens.,
423

419. See, e.g., Kuldip Nayar, Illegal Detentions in J & K (Jammu & Kashmir,.
HINDU, May 28, 1998, at 10 (discussing human rights violations in Kashmir).
420. See, e.g., Interview with Bal ThackeraY; the leader of the Shiv Sena party ,
TIMES OF INDIA, Jan. 25, 1993 at 43 (Canadian edition).
421. See id.
422. See V.R. Krishna Iyer, Rowlatt Act, TADA & POTA 11 HINDU, Aug. 4,
1998 at 12. TADA is the acronym for Tamil Nadu Prevention of Terrorist Activities
Bill, which allows evidence of a confession by a person before a superintendent
of the police into evidence. See id.
423. Editorial, National Security and Human Rights Not Antithetical, TIMES OF
INDIA, Apr. 20, 1998, at 11.
1998]
AM. U. INT'L L. REV.
In the future, it is imperative that the Judiciary take an active role
in curtailing wrongful detention rather than helplessly surrendering
the issue to political cowardice. Having come so far in requiring a
reasonable and fair procedure for protecting individual liberty, it
would be a great leap forward if the Supreme Court reviews the constitutional
provisions pertaining to preventive detention and bolsters
the minimal due process laid down therein.4 Victimizing individuals,
particularly Muslims, in the name of national security would be
an ominous development indeed, and could potentially turn the outside
Islamic world against India.4
1' Further, aggrieved members from

minority communities would be most likely recruited by foreign insurgents.

4 -6
D. A THIRD FREEDOM STRUGGLE?
The Indian Constitution was barely twenty-five years old when it
was suspended from June 1975 to March 1977.42' The Emergency
was a second freedom struggle, a turning point for societal institutions
and Indian citizens. This event politicized the average citizen
and demonstrated the importance of liberal values in a democracy.
Additionally, it reminded societal institutions such as the press, the
Judiciary, and the opposition parties of their power and responsibilities.
42 The post-Emergency era consequently witnessed a proliferation
of social action groups, and an unprecedented assertion of journalistic
and judicial power that exposed governmental lawlessness
and upheld a widely construed rule of law.

424. See Dhavan & Reddy, supra note 216, at 183.

425. See M.D. Nalapat, India's Taliban: Too Many Kooks Spoil the Broth,
TIMES OF INDIA, Apr. 29, 1998, at 21.
426. See id.
427. See Nanda, supra note 157, at 22 (stating that "[a] systemic and steady erosion
of the fundamental freedoms guaranteed by the constitution of India began
with the imposition of the State of Emergency by the Government of India on June
25, 1975.").
428. See id. at 33 (noting that "[flear of arrest for expression of dissident views
has severely curtailed public debate in Parliament, in educational institutions, and
in various public forums known for lively discussion on political, economic, and
social matters before the Emergency.").
[14:413
CONSTITUTIONALISM AND RIGHTS LV INDL.I
1. Case for a Robust Civil Society
Today, two decades later, it is worth pondering what lessons the
past has taught and what the future will bring. First, the past demonstrates
that freedom is a beckoning goal, requiring everyone to be
alert to the possibilities of injustice. Second, history shows that
emergency excesses are no different from daily excesses of raw state
power on helpless citizens. The difference is not really one of kind
but merely one of degree. It is heartening that despite acute poverty,
high levels of illiteracy, unemployment, and depressed conditions, a
substantial portion of the poor in India are non-militant and have
faith in the democratic process.. 4 Today, there is a considerable rise
in political consciousness among the citizenry especially among the
hitherto oppressed, like the untouchables. ' " More notably, the oppressed
are increasingly aware that it is only through the democratic
process that they have any chance of improving their condition.'
The emergence of this sustained faith in the democratic process
among the governed on the one hand and growing lawlessness
among the rulers on the other confirms that the time is ripe to act.
Democracy requires strengthening citizen participation and civility,
and demanding accountability from the government.f
Elsewhere in the world, people from diverse backgrounds have
come together to defend democracy and crusade for more equitable
development. Examples of such global citizen actions range from
Polish workers challenging a totalitarian regime to Argentinian
mothers of political prisoners confronting a military dictatorship.

429. See Rajni Kothari, India: The Growing Courage of the Poor, TIMES OF
INDIA, July 28, 1997, at 13.
430. See id.
431. See id.
432. See Brenda Cossman & Ratria Kapur, Secularism s Last Sigh?: The Hinht
Right, the Courts, and hIdia's Struggle For DemocracY 38 HARv. INT'L. L.J. 113,
141-70 (1997) (discussing secularism and democracy).
433. See Miguel Rodriguez & Rajesh Tandon, Emergence of Global Civil Society,
26 U.S.I.A. ELECTRONIC J. 1997 (1996).
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2. Bold Action Needed
Two important correlatives of constitutionalism are: 1) all power
derives from the people, and 2) the government has complete political
responsibility to the governed. Yet, in India, rampant corruption
at all levels of the government caused scores of development projects
and economic and social schemes to fail to benefit those they govern.
3'4 It is therefore imperative that citizens and their organizations
assume greater responsibility in monitoring the efficiency of government-
implemented policies. Indeed, these groups should launch a
vigorous campaign for the right to information. As a result of a sustained
campaign undertaken by the Mazdoor Kisan Shakti Sanghatan,
a people's organization, the Government of Rajasthan recognized
the people's right of access to official documents at the village
level.435 Citizens, government officials, and local government leaders
participated in several Jan sunwai, public hearings, to examine the
implementation of development works, detect frauds, and take remedial
actions. 3'6 These seemingly small victories must be won more frequently
in other states as well, since they provide an opportunity to develop
internal processes relevant to the actual concerns of the people.
The hearings also provide meaningful opportunities for ordinary citizens
to break out of the vicious circle of collective apathy and individual
hopelessness.
India is a highly diverse society marked by deep social cleavages."
Constitutionalism provides Indians with a means to reconcile the competing
interests, resolve conflicts, elect representatives, and implement
public decisions in a peaceful, civilized, and orderly manner. Constitutionalism
caters to the distinct needs of a pluralist society like India.
Therefore, if its roots are to be strengthened in India, constitutionalism
must evolve from the lower levels through active and collective efforts
to protect socio-economic values that have resonance in the Indian subcontinent.

434. See Bela Bhatia & Jean Dreze, For Democracy and Development,
FRONTLINE, Mar. 6, 1998, at 102 (discussing projects that never reached India's
low income population).
435. Id.
436. See id.
437. See Kuppuswami, supra note 369 (identifying social distinctions in India).
[14:413CONSTITUTIONALISM AND RIGHTS IN INDIA
I
f achieving spectacular successes in strengthening constitutionalism
is considered utopian, achieving great advances in this direction
are certainly not. Mobilizing citizen participation to translate constitutional
values into a living reality and building a robust civil society
are steps towards attaining that goal.
3. Secularism in Danger: Bharativa Janata Pary and the Hindutva
Agenda
Several years ago an eminent scientist presciently pointed to the current
crisis in constitutionalism when referring to "the danger of a particular
kind of sometimes fundamentalist, of othertimes religious orthodoxy
erupting within secularism, not simply in opposition to it.""'
The Hindutva agenda, which constitutes the "ideological linchpin" of
the BJP, represents this danger erupting within secularism.4 ' It is a
grave threat to both the secularity of India and the fragile secular fabric
of Indian civil society.
What is Hindutva? Hindutva literally means "Hinduness" but seen in
its historical and current political context, is simply a quasi-fascist majoritarian
ideology.4' Premised on the principle of the political, cultural,
and religious supremacy of Hinduism, it vociferously advocates
the establishment of a Hindu Rashtra, a Hindu State."' The BJP has
deployed Hindutva to attack the legitimacy of the collective rights of
minorities. 442 Wedded to the formal concept of equality, the BJP regards
any special treatment of religious minorities as a violation of
secularism."3 Implicit also in the Hindutva agenda is the reinforcement

438. Cossman & Kapur, supra note 432, at 113 (citing Homi Bhabha, Secularism
as an Idea Will Change, HINDU, Dec. 17, 1995, at XIX).
439. See id. at 113, 115, 116 (discussing how the Hindu Right, which includes
the BJP, has "sought to promote and spread").
440. Id. at 116.
441. See id. (stating that the Hindu Right in India, composed of the BJP,
Rashtriya Swayam Sevak Sangh ("RSSS"), the Vishwa Hindu Parishad ("VHP"),
the "militant anti-Muslim Shiv Sena ... collectively seek to establish a Hindu
State in India").
442. See id. at 135.
443. See Malik & Singh, supra note 351, at 12 (noting that 'BJP leaders insist
that secularism is natural to Hinduism because it is 'impossible for the Hindus to
evolve an established church or proclaim a state religion and call upon the State to
impose it').
1998]
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of Brahmanical superiority through perpetuation of the Brahmanical
culture.4" This is the cultural mainstream into which the rest of the Indians
comprising Hindus (non-Brahmins), Dalits (untouchables), Muslims,
Sikhs, Christians, and Buddhists are urged to swim and ultimately
drown by voluntarily giving up their distinct identities and/or having
their identities forcefully obliterated.45" Hindutva thus simply means
"the assimilation of all minorities into the majoritarian way of life.1 41 It
is "a call to Hindus to unite against these religious minorities; at best it
is a call to assimilate these minorities into the ostensibly more tolerant
fabric of Hinduism, and at its more extreme it is a call to simply destroy
them."" 7
The real danger of Hindutva, however, lies in the insidious way in
which it masquerades a singularly non-secular version of secularism
and opposes genuine and democratic secularism as "pseudosecularism."'
48 Hindutva has "appropriated [the dominant] discourse of
secularism within constitutional law for its own rather non-secular purposes."
449
The Supreme Court's judgment in the Hindutva cases45 constitutes a
constitutional debacle in this regard. Despite the current context of
Hindutva, which is currently a vicious attack on the legitimacy of minorities'
rights, the Supreme Court seriously erred in holding that Hindutva
represented a way of life in the subcontinent and did not constitute
a violation of the Representation of the People Act.45
, One of the

effective checks that the Court can exercise to prevent majorities from
usurping constitutionalism is to institutionalize minority rights. E.P.
Thompson wrote:

444. See Nalapat, supra note 425.

445. See id.
446. Coosman & Kapur, supra note 432, at 135.
447. Id. at 136.
448. Id. at 139.
449. Id. at 141.
450. See id. at 113 (discussing Manohar Joshi v. Nitin Bhavrao Patil and "eleven
other cases collectively known as the Hindutva cases").
451. See id. at 114 (arguing that the Supreme Court erred in "concluding that Hlindutva
constitutes a way of life of the people of the subcontinent and that it constitutes
neither a violation of the prohibition on appealing to religion to gain votes nor a violation
of the prohibition on promoting religious enmity and hatred").
[14:413
CONSTITUTIONALISM AND RIGHTS IN LvDIA
India is not an important but perhaps the most important country for the
future of the world. All the convergent influences of the world run
through this society: Hindu, Muslim. Christian, Secular, Stalinist, Liberal,
Maoist, Democratic Socialist, and Gandhian. There is not a thought that is
being thought in the East or the West that is not active in some Indian
mind. If that subcontinent should be rolled up into authoritarianism, if that
varied intelligence and creativity should disappear into conformist darkness,
it would be one of the gravest defeats of the human record, sealing
the fate of a penumbra of other Asiatic nations."52
Unfortunately, the episodes of the past few months point to the
creeping fascism about which E.P. Thompson warned. Recently, the
BJP destroyed a progressive artist's house and workshop in response to
the artist rendering a Hindu goddess in the nude in an oil-color painting
53 and Shiv Sena men in Mumbai militantly opposed a concert by a
noted Pakistani singer.4
4 Freedom of expression is thus being
squelched in the interest of the ruling party and state defined morality.
Official BJP disapproval stemming from puritanical, religious, or
chauvinistic biases is now assuming dimensions of cultural terrorism in
India. Unchecked, this phenomenon can simply snowball. It is clear
that the BJP's Hindutva agenda has grave implications for minorities,
women, untouchables, and indeed the very fabric of India's civil soci ety
and the foundations of the Republic. As one scholar warned, "undemeath
the [BJP's] mask of moderation remains the steel-hard determination
and ruthlessness of the Sangh combine and the RSSS."' All
of this cannot be met with any sense of complacency.

452. NANI PALKHIVALA, OUR CONSTITUTION DEFACED AND DEFILED 230

(1981).
453. See Vir Sanghvi, HINDUISTAN TIMES, May 12, 1998 at 12 (discussing attack
on painting); Editorial, The "Hidden Agenda " (R4M Temple Issue), HINDU,
May 27, 1998, at 12 (discussing the attack on the painting as evidence that "the
BJP is beginning to show its real face").
454. See Editorial, supra note 453 (noting that this event was "allowed to be carried
out by State machinery").
455. See id. (noting that "fears about the BJP's hidden agenda are not just visceral").
456. ACHIN VANAIK, THE FURIES OF INDIAN COMMUNALISM: RELIGION,
MODERNITY AND SECULARIZATION 347 (1997).
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4. Battle Against Hindutva
A secular state in principle without a secularized civil society is
bound to decisively undo the former in due course. Sustained efforts to
halt the onslaught of Hindutva and many other forceful moves toward
further secularization of civil society must be made in the days ahead.
Societal institutions such as the Courts, the press, NGOs, intellectuals,
and professional groups need to rally their forces in this onward march
against Hindutva.
If past governments have been blind to the injustices against untouchables,
migrant laborers, women, and children, then the current air
of religious intolerance, cultural nationalism, and cultural correctness,
opens up new opportunities for citizens, lawyers, journalists, activists,
or public figures to think of the prejudices that need to be confronted.
Specifically, all Indians must determine and advocate on behalf of the
silent groups and unfavorable minorities today. Additionally, these silent
groups must speak up for themselves. Certainly, these groups are
not limited to religious minorities, progressive artists, and musicians,
but must include lesbians and gays and other groups as well. It is also
imperative that the non-BJP parts of the political spectrum and democratic,
secular, and progressive forces in particular rise to the challenge.
The response must essentially be political, grounded in democratic and
progressive mass mobilization. If the Republic is to be saved from the
scourge of hate, bigotry, and terrorism, India cannot afford to have
short cuts in this fight against the BJP and its Hindutva agendaf In
fact, pursuant to Bommai, the government is under a constitutional
duty to act accordingly in light of its basic structure obligations to
uphold secularism.458 Governments that subvert secularism-one of
the principal tenets of the Constitution-have no right to constitutional
existence.

457. See Rajeev Dhavan, Ayodhya: Stop This Madness Now, HINDU, June 19,
1998, at 12 (stating that the VHP of which "the BJP is no more than a political
arm" is "running riot terrorising Christians and intimidating Muslims").
458. See supra notes 386-91 and accompanying text (discussing S.R. Bornnai v.
Union of India).
494 [14:413
CONSTITUTIONALISM AND RIGHTS I INDIA 49
CONCLUSION
Five decades ago, on the eve of independence, on a cold wintry
day, India's founding fathers assembled in New Delhi to embark on
the solemn task of framing India's founding deed. Having waged a
relentless struggle for freedom-not with bayonets and bullets but on
the lofty principles of non-violence and truth-they were deeply
committed to transforming India into an egalitarian and humane society.
Thus, they resolved to constitute India into a sovereign, secular
and democratic republic guaranteeing all citizens the following: social,
economic, and political justice; liberty of thought, expression,
faith and worship; and equality of status and opportunity.' :' It was a
momentous political decision for constitutionalism and human rights
in history. One can say today that constitutionalism has become part
of India's constitutional heritage. Without it, it is doubtful that Indians
would enjoy the degree of liberty that they have today.
Half a century after its enactment, the framers' pledge boldly
shines in a period made dark by corruption, misrule, and religious
bigotry. Yet the usurpation of constitutional values contained in the
Preamble and the contention surrounding them are a reminder that
their advocacy and robust defense is a task for each succeeding generation
of Indians.
At the inaugural session of the Constituent Assembly, Chairman
Satchinanda Sinha related to the members the following quote of the
great American jurist, Joseph Story: "Republics are created by the
virtue, public spirit, and intelligence of the citizens .... They fall,
when the wise are banished from the public councils because they
dare to be honest, and the profligate are rewarded, because they flatter
the people, in order to betray them."'
Joseph Story's wise warning is markedly relevant for Indians today
when the Republic stands imperiled from the vice of its leaders
and the ignorance and apathy of its citizens.

459. See supra Pt. L.A (discussing the founding father's framing of India's Constitution).
460. 1 CONSTITUENT ASSEMBLY OF INDIA, 1st mtg. (Dec. 9 1946) (visited Nov.
30, 1998) <http://alfa.nic.in/debatestvollp1.htm> (statement of Satchinanda Sinha,
Assembly Chairman).
1998] 495