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This article is written by Siddharth Jasrotia, from MNLU, Mumbai.


Basic rights are those minimal rights which individuals have against the state or other public authority by virtue of them being members of the human family, irrespective of any other considerations. The concept of basic rights is founded on the ancient doctrine of natural rights. Ever since the beginning of civilized life in a political society, the shortcomings and tyranny of ruling powers have led people to seek for higher laws. The concept of higher laws binding upon the authorities evolved and asserted that there were certain rights anterior to society. 

Judicial Review Doctrine

Conventionally, two principals have ensured that legislative action remains within constitutional bounds. Firstly, the doctrine of constitutional supremacy, which allowed for democratic self-governance surrounded by institutional and normative constraints on power-holders and secondly, the doctrine of judicial review.

The dilemma regarding whether the Court’s reasonable interpretation should prevail over the legislature’s reasonable interpretation, has given birth to two forms of judicial review as described by Mark Tushnet in Weak Court, Strong Rights. The first is the ‘Weak-form systems’ of judicial review and the second is the ‘Strong-form systems’ of judicial review. Strong-form systems are those where judicial decisions are final and not revisable by ordinary legislative majorities, whereas in weak-form review systems, Courts can assess legislation for compliance with constitutional norms, but their decisions can be overridden by ordinary legislative majorities. Judicial interpretations in Strong-form systems can be rejected by special majorities required for constitutional amendment or be repudiated by the Courts themselves in due course. Weak-form system of judicial review holds out the promise of reducing the tension between judicial review and democratic self-governance, while acknowledging that constitutionalism requires that there be some limits on self-governance.

  • In United States of America

The system of judicial review followed in the United States is Strong-form judicial review. The American Supreme Court in Cooper v. Aaron [358 U.S. 1 (1958)] described the federal courts as “supreme in the exposition of the law of the Constitution” and inferred from that a duty on legislatures to follow the Court’s interpretations. Thus, the court implied that judicial interpretation prevailed over the legislative one. Similar view was reiterated by the court in City of Boerne v. Flores [521 U.S. 507 (1997)] which dealt with the Congress’ power to enact the Religious Freedom Restoration Act, 1993 (RFRA). The Hon’ble Court highlighted the position that the only rights that Congress could ‘enforce’ were those which the Court had ‘recognised’. It can be analysed that the Court interpreted this provision from the perspective of a legal realist.

It is an interesting fact to note that doctrine of judicial review is itself a result of judicial construction. The Supreme Court of the United States while interpreting the US Constitution in Marbury v. Madison [1803 U.S. LEXIS 352] laid down that powers of judicial review were implied within Article III – Article VI of the US Constitution. The Court inferred from the preferential order in which different laws were listed in these Articles that the US Constitution was the supreme law of the land and it was the duty of the judiciary to render state laws and acts of Congress which are inconsistent with provisions of the Constitution as null and void. 

U.S. federal courts have refrained from providing any advisory opinions to the government. Constitutional challenges can only be brought in connection with actual “cases and controversies.” Although over the recent decades, the actual cases and controversies requirement has been relaxed to include class-action suits or to allow organizations to sue on behalf of their members who are incapable of bringing individual suits, it is still the viewpoint of the Courts that it will not entertain a constitutional challenge unless the party bringing the challenge have a personal and direct interest in the matter. 

  • In India

India believes that it has a living Constitution which transcends over time. Out of the three organs of Government, the judiciary has become a vanguard of human rights in India. The Supreme Court of India declared in the case Ajay Hasia v. Khalid Mujib [AIR 1981 SC 487] that it has a special responsibility, “to enlarge the range and meaning of the fundamental rights and to advance the human rights jurisprudence”.

Traditionally, a petition under Article 32 of the Constitution could only be filed by a person who has suffered infringement of his fundamental rights and fell within the definition of ‘an aggrieved person’ as clarified in Bokaro and Ramgur Ltd. v. State of Bihar [AIR 1963 SC 516]. Only exception which existed was for habeas corpus, where a relative or friend could file a petition on behalf of the person in detention. Borrowing from the American concept of ‘Class Action Suit’, Indian courts, incorporated the concept of ‘Public Interest Litigation’ in S.P. Gupta v. UOI [AIR 1982 SC 149], doing away with the rule of locus standi. Under this provision of Public Interest Litigation, any member of the public having “sufficient interest” can maintain an action for judicial redress under Article 32 or Article 226 of the Indian Constitution. A person filing such a litigation is referred to as ‘public-spirited person’. There are no criteria to define a public-spirited person, and hence anybody can file a PIL. An action can be brought before a Court for public inquiry arising from breach of public duty, for violation of fundamental rights of any third person or to seek enforcement of public duty or legal provisions. Even though the Indian Supreme Court through this provision dealt with a range of issues including sexual exploitation of blind girls in Schools, detention of mentally ill persons, minimum wages, illegal sale of babies et al.; however, it is contested that such provision gives overarching power to the Judiciary. For example, in the case of Indian Young Lawyers Association v. The State of Kerala [2018 SCC OnLine SC 1690], the Supreme Court of India in furtherance of a PIL filed before it, ventured into the domain of religious practices followed by a non-state body to declare its practices derogatory to fundamental rights and hence unconstitutional. Another example could be the guidelines issued by Supreme Court in response to a public interest litigation filed by the Anti-Corruption Council of India for enforcement of its previous order given in Tehseen S. Poonawalla v. UOI [(2018) 9 SCC 501], where Supreme Court going beyond its traditional powers directed the Centre and State Governments to take preventive, punitive and remedial measures to deal with the issue of mob lynching. Such type of orders to direct legislators to pass a legislation is in direct contravention to the principle of separation of powers.
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Evolution Of ‘Procedural’ And ‘Substantive’ Due Process Of Law 

Many strands of due process have evolved over time. One thing that remained constant throughout the reformulations and expansions of the meaning of constitutional due process was the procedural protection from arbitrary government action, because it affected important individual interests. The fact that due process included procedural protection was undisputed. The Due Process Clauses only checks state action. Accordingly, for the Court to find a deprivation of a protected interest, there must have been some governmental action. When the Court limits the application of the state action doctrine, it likewise limits the range of conduct to which due process principles apply.  

  • In United States of America

Evolution of the Due process doctrine after the ratification of the Fourteenth Amendment in 1868 provides considerable insight into the Court’s general intellectual transformation during the late nineteenth and the twentieth centuries. Initially, the Court defined the protected interests under ‘procedural due process’ by determining the importance of the interest at issue. The Courts did not categorize the interest as an interest in “life, liberty, or property” per se. The other major strand of due process is ‘substantive due process’, which refers to due process limits on government regulatory authority. This approach is associated with the Court’s famous decision in Lochner v. New York [198 U.S. 45 (1905)]. An important precondition to the development of substantive due process occurred in 1872, when the Court in Slaughter-House Cases [83 U.S. 36, 77–81 (1872)] held that the Privileges or Immunities Clause should be read very narrowly, thus excluding coverage of substantive rights.  This narrow reading of Fourteenth Amendment for substantive rights has faced stiff opposition, but still applies today. The development of substantive due process produced three subcategories of rights as recognized in Washington v. Glucksberg [521 U.S. 702, 767 n.9 (1997)]. The first subcategory included “non-fundamental” rights that trigger low-level, rational basis judicial review. The second covered unenumerated substantive rights that the Court identified as fundamental, which trigger elevated judicial scrutiny. The third subcategory included enumerated fundamental rights that the Court derived selectively from the Bill of Rights. 

The Court in Lochner’s case striking down a law which regulated the working hours of bakers, held that liberty included the “right to contract.” This judgement had a drastic and severe impact on the government’s functioning. It not only limited government’s involvement in redistributing resources and regulating economic activity but also gave the judiciary the power to scrutinise the ‘ends’ achieved by state action as well as ‘means’ followed. Lochner was overruled by the Supreme Court’s judgement in West Coast Hotel Co. v. Parrish [300 U.S. 379 (1937)], which upheld the constitutionality of state minimum wages legislation. Retrospectively, Lochner is seen as an example of a laissez-faire Court attempting to protect as many liberties as possible from government interference. The official end to  Lochner came in 1937, when the Court retreated from its strongly libertarian approach to socio-economic rights, and stated that liberty in this realm must be thought of in its broader social context, and required only a reasonable relationship.  

Other theories which were adopted by the courts included the “right-privilege distinction” up till the judgement of Goldberg v. Kelly [397 U.S. 254 (1970)] in 1970 and the “bitter with the sweet” theory adopted in Arnett v. Kennedy [416 U.S. 134 (1974)]. Subsequently, with the development of notions of liberty, these theories lost their support and valour. Among all these theories, two things were majorly analysed by the judiciary, first, whether a protected interest of life, liberty, or property exists, and, second, what procedural safeguards are required to prevent erroneous or arbitrary interference with that interest.

Recently, the American courts have emphasized on the process of ‘Selective Incorporation’. In this regard, the Court held in the landmark judgement of McDonald v. City of Chicago [130 S. Ct. 3020, 3034 (2010)], that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. The Court held that an unconstitutional taking violated fundamental principles that the Fourteenth Amendment was designed to protect. The Court thus adopted a selective incorporation approach in which each right would be assessed separately. This incorporation process can be traced back to 1897, when in Chicago, Burlington & Quincy R.R. Co. v. Chicago [166 U.S. 226, 241 (1897)], the Court concluded that a violation of the Takings Clause of the Fifth Amendment also violated the Due Process Clause of the Fourteenth Amendment. The constitutional language is open-ended and designed to apply to a world that is ever-evolving. Moreover, the legal practice in the United States is based on a common law model of judicial interpretation, which too is ever-evolving. As long as this remains the judicial practice, constitutional principles will continue to evolve and morph, even as they are measured against, and understood in relation to, their particular historical backdrops.

  • In India

The expression “procedure established by law” under Article 21 of the Indian Constitution was meant to include ‘any’ sort of procedure, laid down in a law enacted by the Indian legislature. This view of the founding fathers of the Constitution is evident from the constituent assembly debates of December 6, 1948. In the year 1950, the Supreme Court of India in A.K. Gopalan v. State of Madras [AIR 1950 SC 27], reflecting on the intentions of the Constitution makers, held that “procedure established by law” only meant that a procedure had to be set by law enacted by a Legislature. However, three decades later, in Maneka Gandhi v. Union of India [AIR 1978 SC 597], the Supreme Court rejected its earlier interpretation and held that the procedure contemplated under Article 21 is a just and fair procedure, and not an arbitrary procedure. The procedure, which is reasonable and fair, must be in conformity with Article 14 of the Constitution. By virtue of this decision ‘procedure established by law’ has now, in effect become, ‘Due Process of law’. Since then every case of infringement of fundamental rights has undergone judicial scrutiny on the anvil of Article 14, 19 and 21.

Right to Privacy

In no other area of constitutional law are individualism and traditional morality so sharply antagonistic as in the area of privacy rights. The principle of privacy holds utmost importance for divisive social and moral questions such as abortion, gay rights, and euthanasia. The right to privacy has been one of the most disputed and controversial issues in American & Indian constitutional jurisprudence. The controversy stems in part from the absence of any specific reference to privacy in the Constitution. 

  • In United States of America

Even though, the modern Supreme Court has fashioned a general, independent constitutional right of privacy by drawing on the Fourteenth Amendment and on various provisions of the Bill of Rights, there are some academicians who support Justice Hugo Black’s view that a right of privacy cannot reasonably be inferred from the language of the original Constitution or any of its amendments. The Supreme Court highlighted in Griswold v. Connecticut [381 U.S. 479 (1965)] that the right to privacy “emanated” from various provisions of the Bill of Rights. The Court struck down a state statute which prohibited the use of birth control devices insofar as the statute applied to married couples. Court relied upon the Third Amendment which explicitly protected the ‘privacy’ of the home in peacetime from soldiers seeking quarters, the Fourth Amendment which protected individuals from unreasonable searches and seizures, the Fifth Amendment which prohibits compulsory self-incrimination and the First Amendment which ensures freedom of conscience in both political and religious matters, recognizing the autonomy of the individual. This judgement followed many controversies and political unrest.
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This controversial and disputed stance, further escalated because of the judgement given by the Hon’ble Supreme Court in Roe v. Wade [U.S. 113 (1973)], where the Court relied on the right of privacy to strike down a statue passed in Texas which criminalized abortions. The Supreme Court of USA held that the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”. Unlike most constitutional decisions, this case aroused deep philosophical conflict and even deeper political and emotional turmoil due to its clashes with Christian ethics. Roe’s case drew the Supreme Court into a firestorm of political controversy that continues till date. This controversy has dominated public discussion of the Court, often eclipsing other important issues and likewise influencing the debate surrounding nominations to the Supreme Court. The United States Supreme Court, unmoved by the ‘Anti-Abortion or Right to Life Movement, reaffirmed the decision of given in Roe, in 1992 judgement of Planned Parenthood v. Casey [505 U.S. 833 (1992)] and 2000 judgement of Stenberg v. Carhart [530 U.S. 914 (2000)]. When the Supreme Court invoked the right of privacy to effectively legalize abortion within stated limits, it was giving expression to a sense of moral individualism that is deeply rooted in American culture. However, this sense of moral individualism is strongly countervailed by notions of traditional morality.

The right to marry, to choose one’s spouse, to select an occupation, to travel freely within the country, and to enter into contracts are all examples of long-standing rights retained by the people although they are not explicitly provided for in the Constitution. They have achieved constitutional status by virtue of the fact that they are elements of the “liberty” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. To the extent that judicial recognition of the right of privacy relies on the Due Process Clauses of the Fifth and Fourteenth Amendments, it may be viewed as a modern application of the doctrine of substantive due process. Justice Louis Brandeis in his dissenting opinion in Olmstead v. United States [277 U.S. 438 (1928)] has also emphasized on the right of an individual ‘to be left alone’.

  • In India

The question regarding the right to privacy as a fundamental right first arose before the Supreme Court of India in 1965 in the case of the State of U.P. v. Kaushaliyal and others [AIR 1964 SC 416]. This case challenged restrictions imposed under the Suppression of Immoral Traffic Act, 1950 on movement of prostitutes. The Supreme Court in this judgement held that the activities of a prostitute in a particular area are so subversive of public morals and health that it is necessary in public interest to deport prostitutes.  They held the restriction to be a ‘reasonable restriction’ under Article 19(l)(d) and (e) of the Constitution of India. Shortly after independence, in a case challenging the constitutionality of search and seizure provisions, the Supreme Court in M. P. Sharma v. Satish Chandra AIR 1954 SC 300 (1954) dealt a blow to the right to privacy in India, holding that “When- the Constitution makers have thought fit not to subject [search and seizures] to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right”.

It was in 1964 that the Indian Supreme Court explicitly recognised a right to privacy as a fundamental right under Article 21 of the Constitution in Kharak Singh v. The State of U.P. [(1964) 1 SCR 332] The Court held that the right to personal liberty takes within its ambit not only a right to be free from restrictions placed on movements, but also a right to be free from encroachments on private life. This judgement was relied upon heavily in 2014, while deciding Justice K.S. Puttaswamy v. UOI (2014) 6 SCC 433.

Judicial Activism turning Into Judicial Overreach

The powers of the State are generally characterized as the legislative power (i.e. making laws), the executive power (i.e. enforcing laws) and the judicial power (i.e. adjudicating the disputes by applying laws). Though the rigid separation of powers is impracticable, there must exist cooperation and coordination among the three branches. The role of judiciary has transformed from the conventional passive role into a more active and participatory role. Attempts made by the Judiciary to protect the rights of the country’s citizens and to restrain constitutional transgressions by the authorities, has introduced judicial activism. It is noted that, if judges use this instrument whimsically, it should be ascertained as judicial overreaching. Just the opposite concept of judicial activism is judicial overreach or judicial over-activism, but it is very difficult to determine a median line between these two concepts. When the judiciary crosses over its power by interfering with the functioning of the legislature or executive, thereby causing a grave breach of the doctrine of separation of powers, the judicial activism becomes judicial adventurism, which is popularly known as judicial overreach. Justice J. S. Verma stated that, “Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ad-hoc-ism or judicial tyranny”

The supervisory power is not vested with unlimited prerogative to correct all types of hardship and it must be restricted to the cases of grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. Thus, in the name of interpretation of the Constitution and the laws, the judiciary cannot create new laws or amend the existing laws. The US Supreme Court has laid down a pragmatic test for judicial intervention in the matter with a political hue which determines precondition for judicial intervention. It lays down that the controversy before the court must have a justifiable cause of action and it should not merely suffer from lack of judicially discoverable and manageable standards to resolve. 

Addressing the Constitution as a ‘living organism’, Indian judges have followed an evolutionary model of interpreting the Constitution. Similar approach can be seen in the interpretation of the clause “evolving standards of decency” under the Eighth Amendment by the US supreme court in Trop v. Dulles 356 U.S. 86 (1958). It is often argued that to uphold the democratic structure and changing needs and aspirations of the society, the Constitution should not be construed as a sacred document that nobody could touch but rather as a supreme law which is dynamic and alterable. Constitution makers designed it to respond to the existing problems when it was drafted, while simultaneously providing a framework for the future functioning of government. Jurist Soli J. Sorabjee emphasizes that Constitution makers explicitly rendered the powers to alter the Constitution to the legislature only. Problems arise when Judiciary takes this role of the legislature, be it the interpretation of the word “untouchability” under Article 17 in the Sabarimala case or the interpretation of Article 21 in the Maneka Gandhi case. Originalist argue in this regard that the Constitutional text must be given the original public meaning that it would have had at the time that it became law. The originalist model of interpretation of the Constitution is necessary to uphold the constitutional principle of ‘Separation of Powers’. Judicial activism has reached every aspect of our daily life ranging from labour wages to environment, public health and safety. Where on one hand, this active role of judiciary has been welcomed by lawyers and public in general, on the other hand, politicians and constitutional experts have criticized this approach. It is the standpoint of many scholars that the judiciary should only play a passive role of decision making and refrain from law making. Even though the merits of judicial activism are appreciable, the threat of judicial activism turning into judicial overreach is immense. Indian and American judiciary need to follow a ‘self-regulatory practice’ in this regard because powers and actions of all other organs of state are limited by the Constitution and such limitations are overseen by the Judiciary; however, in the case of judicial action, there is no authority in place which can identify and limit transgression of power by the judiciary. Since there is no authority to restrict judiciary from violating the constitutional principle of separation of powers and any such violation is to be judged by judiciary itself, it makes judiciary an arbiter in its own case. 

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