CHAPTER–I

INTRODUCTION

I. General Introduction:

The Thesis presented herein under the title: “A Study of Development

of Indian constitution through judicial decisions with special reference to

Fundamental Rights” deals with matters which are concerned with the

Constitution of the Republic of India in so far as its development through

judicial decisions in the particular area of Fundamental Rights is concerned. In

other words, it is concerned with the role of the Judiciary in India which by its

interpretation of the Constitutional provisions particularly in regard to the

provisions on Fundamental Rights has contributed to the development of the

Constitution.

This research has been carried out in the Research Centre of Law of

Narayanrao Chavan Law College, Nanded, for the award of the Degree of

Doctor of Philosophy, (Ph.D.) of Swami Ramanand Teerth Marathwada

University, Nanded, Maharashtra State. The specific branch of law in which

research has been done is the Constitutional Law of India with a reference

wherever necessary to certain aspects of the other branches of Public Law, like

Administrative Law, Criminal Law, International Law etc.

Before writing out anything on any particular aspect of the subject

matter of this Thesis, the researcher would like to say a word about the matters

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which have induced her to take this topic of research. There are three segments

of the topic, namely,

(i) the nature of Constitution and the problem of the development of

the Constitution;

(ii) the various methods which generally contribute to the development

of the Constitution, and

(iii) the specific method of judicial interpretation of the Constitutional

provisions in the area of Fundamental Rights

With regard to the first segment of the topic, the nature of

Constitution and the process through which it passes for its development, the

researcher would like to state that the Constitution of a country is a document

which sets out the legal framework of the State wherein it lays down the

principal functions of the government and declares the principles governing the

operation of those organs.1 Besides providing for the structure of the principal

organs of the government, the Constitution regulates their relationship to one

another and determines their principal functions. The significance of a

Constitution is that - it is the supreme law of the land and its dynamics cause all

the agencies of State Administration to work on proper lines so that the high

ideals of the State are implemented in good faith and the peace, progress and

prosperity of the people is taken care of. Every Constitution is a living

instrument and it grows with the passage of time. When problems come in the

way of the authorities of the State in implementing any of the provisions of the

1
Wade & Phillips, ‘Constitutional Law’, page 1, 4th Edition

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Constitution or when people do not get the required protection to their rights

against unjust deprivation of their freedoms under the Fundamental Rights, the

old provisions of the Constitution under which such a disturbing situation has

arisen need to be either deleted or amended so as to enable the Constitution to

meet the new challenges. The Indian Constitution is not an exception to this

rule.

With regard to the second segment, the researcher would like to

submit that no Constitution is perfect in every respect and is never in a position

all the time to deal with every situation arising in the future. It allows for

changes to be made for the good of the society. Likewise, there is no single

method prescribed by any Constitution to develop its provisions; on the other

hand, there are various methods such as the methods of amending procedure

through Constitutional conventions, Constitutional referendum, Presidential

decrees, and initiatives of the political parties and judicial interpretation of the

provisions of Constitution.

With regard to the third segment, the researcher has to state that this

is main area of research. In fact, in this area a significant development of the

Constitution was witnessed in our country; from the time the Constitution came

into force up to the time the researcher took up the task of researching on this

aspect of the Constitutional system of our county, i.e., up to 2010 AD

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 I. Background to the Study:

The circumstances which have inspired researcher to take up research on

this topic are that- the developments relating to the interpretation of the

Constitution of our country on the subject of Fundamental Rights have been of

great significance. In the legal systems of the present day political societies,

generally, the practice has been to set up certain machinery which may respond

to the typical problems arising from the functioning of the agencies of State

administration or as a result of the impact of the emerging conditions on the

rights and interests of the individuals. In some Constitutions, the body set up

for this purpose is the Legislature (known as Parliament or Assembly or

Congress) which is empowered to introduce changes in the Constitution to

tackle the problem arising from the disturbing trends. In some Constitutions, it

is the Executive (known as the President or Governor General) or the Judiciary

(known as the Supreme Court or the High Court) which is authorised to

introduce changes in the law. Such institutions are expected to deal

appropriately with the problems and keep the State machinery functioning

properly in public interest.

In the absence of an effective system to introduce changes in the

Constitutional system, such as the institution of Union Parliament to

successfully introduce changes by way of amendment of the Constitution or an

executive order sufficient to introduce changes, Judicial Legislation is the only

source of law which has successfully worked in the matter of bringing about

changes in the Constitutional law of our country.

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 Right from the commencement of the Constitution, the courts have been

passing orders in the exercise of their judicial powers adding to the body of the

Constitutional law. The work performed by the Courts is with regard to all

those matters which are covered by the Constitution and the Statutes of the

appropriate legislatures.

But the researcher has selected the area of Fundamental Rights in which

the decisions of the Courts have made a tremendous contribution to the

development of the Constitutional Law of our country. Thus, this research

work is about the work of the Judiciary in addressing the situations which

called for an effective measure to afford protection to the fundamental rights of

the individuals.

Though there is such a vast area in regard to which the Courts may

exercise their power of interpreting the laws, the one particular area on which

this research is focused is the area of Fundamental Rights. The enquiry is: what

has been the role of the Judiciary in developing the Constitution through the

interpretation of the Constitutional provisions dealing with the Fundamental

Rights.

The Constitution of India came into force on 26th January 1950 and since

then there has been a phenomenal growth in the development of Constitutional

concepts, principles and dynamics. There are various ways of developing a

Constitution; among them the most direct method is the method of formal

Amendment by the Parliament. But the most active institution of the State

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which has contributed immensely for Constitutional development is the

institution of Judiciary and it has made its contribution by virtue of the process

of judicial interpretation and this particular role of the Judiciary has been

witnessed in relation to the Fundamental Rights as guaranteed in Part III of the

Constitution.

II. Statement of the Problem:

Since the commencement of the Constitution, the judiciary in India has

rendered number of important judgments while dealing under Constitution,

especially in respect of fundamental rights. All this has been owing to the

problems which had arisen on account of a few of the following circumstances:

(i) There was violation or deprivation of the rights of the individual

because of abuse of power or misuse of authority;

(ii) There was discrimination practiced on grounds of religion, caste,

region or sex;

(iii) There were cases of deprivation of rights to the marginalized

groups;

(iv) There were number of cases in which the law enforcement

officials trampled upon the rights of the people;

(v) There were situations when the rights known as Human Rights

granted under the Human Rights Convention were not recognized

in favour of the affected individuals;

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 (vi) When the International Conventions were not domesticated

because of the problems of legislative competence or lack of

political will to adhere to the international regulations;

Specific illustrations of the violation of Rights and the deprivation of the

rights of the individuals may be stated as following - Art. 21 of the Constitution

says that – “No person should be deprived of his life or personal liberty except

according to the procedure established by law”. Prior to Maneka Gandhi’s2

decision, Art. 21 guaranteed the right to life and personal liberty to citizens

only against the arbitrary action3 of the Executive and not from Legislative

action. But, after Maneka Gandhi’s decision, the protection extends not only

for Executive actions but Legislative actions also. In this case, the Supreme

Court has given new dimension to Art. 21. It has held that the right to life is not

merely confined to physical existence but it includes within its ambit, the right

to live with human dignity.

In Olga Telles Vs Bombay Municipal Corporation4 case, a five- judge

bench of the Supreme Court held that right to life includes the right to

livelihood also. In Telephone Tapping case5 right to privacy is treated as a part

of right to life. In Gian Kaur Vs. State of Punjab6, the Supreme Court held that

the right to life does not include right to die.

2
AIR 1978 S C 597
3
AIR 1997 S C 568
4
AIR 1986 S C 180
5
People’s Union for Civil Liberties Vs Union of India (AIR 1997 S C 568)
6
(1996) 2 SCC 648

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 In Unni Krishnan Vs State of A P7, the Supreme Court held that right to

education is a fundamental right under Art 21 as it directly flows from right to

life. The preamble of Constitution of India contains the ideals, aspirations and

objectives which the makers of the Constitution had aimed at.

The aim pursued in this research is to evaluate the role of judiciary in

the development of Constitution. Since the judiciary has an important role to

interpret the law; the present research work has been carried out to show the

response given by our courts while interpreting the Constitutional provisions,

particularly in respect of fundamental rights. In short, the present study is a

study on the development of the Constitution through judicial process in India.

I. Significance of the topic of research:

The significance of Part III of the Constitution is that - it contains a long

list of fundamental rights. It has been described as the Magna Carta of India.

Magna Carta (1214) was a written assurance given by King John to

Englishmen for respecting the ancient liberties. It was the first written

document relating to fundamental rights of the citizens. The philosophy of

Magna Carta was witnessed in a public document of 1789, in France, in the

form of the ‘Declaration of Rights of Man & the Citizens’ which embodied the

natural, inalienable and sacred rights of Man and the citizens. After that the

high ideals of the Rights of individuals was witnessed in the Bill of Rights

which the Americans incorporated in their Constitution. The Americans were

the first to give Bill of Rights a Constitutional status. The framers of Indian
7
(1993) 1 SCC 645

8
Constitution took inspiration from these phenomena and incorporated a full

chapter in the Constitution dealing with the Fundamental Rights. These

fundamental rights contained in Part III of the Indian Constitution can be

grouped under several sub-heads as the Right to Equality8, the Right to

Freedom9, the Right against Exploitation10, the Right to Freedom of Religion11,

the Cultural and Educational Rights12 , and the Right to Constitutional

Remedies13.

Fundamental Rights are essential to protect the rights and liberties of the

people against the Government. They are the limitations upon all the powers of

the Government. The object behind inclusion of Fundamental Rights in Indian

Constitution is to establish a government of law or Rule of Law and not of Man.

The object is not only to provide security and equality to the people but also to

provide certain standards of conduct, justice and fair play14.

The Fundamental Rights guaranteed under Part III of Indian Constitution

are the basic rights based on the modern democratic thought that certain

elementary rights, such as, the right to life, liberty, freedom of speech and so on,

should be regarded as inviolable under all conditions and the shifting majority

in the Legislature of the country should not have a free-hand interference with

them. These are most essential rights for individuals to attain full intellectual,

moral and spiritual status.

8
Art. 14 to 18 of Indian Constitution
9
Art. 19 to 22 of Indian Constitution
10
Art. 23 – 24 of Indian Constitution
11
Art. 25 to 28 of Indian Constitution
12
Art. 29 – 30 0f Indian Constitution
13
Art. 32 of Indian Constitution
14
AIR 1978 SC 597 at P 619

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 The courts through judicial activism have given and are giving widest

possible interpretation to the provisions of Part III i.e. Fundamental Rights of

the Constitution.

V. Area of Research:

As stated above, research has been carried out with the objective of

studying and evaluating the contribution of judiciary, especially the Supreme

Court of India, in the development of Constitution of India, through its

decisions. To be more specific, the study covers Constitutional developments

especially regarding the Fundamental Rights. A study has been done of the

landmark judgments of the Supreme Court involving the various norms of

Constitutional interpretation, such as the judicial creativity, the scope and effect

of judicial review and positive and liberal role of the judges in public

controversies. Since the Fundamental Rights in the Constitution of India are

quite many in number and it is not possible to study the developments

concerning all of them one go, the researcher has, after a careful consideration

of the matter, and in consultation with her Research Supervisor, selected the

two areas of Fundamental Rights, one in regard to the Right of the individuals

to Life and Personal Liberty and the other with regard to the Rights of the

Women.

VI. Hypothesis:

By a preliminary observation of the subject matter, the hypothesis

formulated for study is that –

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 1. The Supreme Court of India by the process of judicial interpretation has

expanded the scope of various Fundamental Rights and explored the

status of the law on Rights of the individuals in various situations.

2. Through judicial activism, new fundamental rights have been developed

as part of the body of Constitutional law and come to play a significant

role in the Constitutional provisions incorporated, which are not

expressly mentioned in the Chapter of Fundamental Rights.

3. The function of the Court in Constitutional parlance is known by

several names, it is known as judicial interpretation or judicial

construction or judicial legislation or judicial activism. Through this

process, the Fundamental Rights have received a new twist and the

principles of Constitutional law have grown and developed to keep pace

with the changing times and the needs and aspirations of the people in

the new environment.

The above hypothesis has been tested in the light of the landmark

decisions of the Supreme Court in respect of Fundamental Rights and the role

of the Judiciary in interpreting the provisions of the Constitution in the light of

the changed circumstances.

VII. Methodology:

Keeping in view the nature of research work and the hypothesis

formulated, the researcher has followed the Historical and Doctrinal Methods

of research.

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 This methodology is based on an analytical study of the fundamental

principles of Constitutional Law, their interpretation of the provisions of the

Statutes enacted by the Legislature and the deficiencies located in the statutory

provisions, because of which the Judiciary had to step in and play its role in

making up the deficiency.

Of course, there are a large number of matters requiring judicial

intervention, such as, the powers and functions of the legislative institutions,

the executive agencies and administrative bodies, in regard to which; the

shortcomings in the authorities could be noticed. But the most significant

aspect of these developments which called for a review from the point of view

of judicial decisions has been the plight of the individuals whose rights were

violated or taken away by the legislative or executive authorities of the state.

The matter which were of great importance in the realm of public law,

therefore, were the rights of the people, the powers and functions of the

governmental institutions, administrative agencies and other institutions falling

within the wider definition of the term ‘State’.

Research has been done on these matters by reviewing the secondary

sources of law like the books, journals, statutes, international instruments and

other documents available at the Faculty Library of the Narayanrao Chavan

Law College, Nanded, the Faculty Library of Fergusan College of Law Pune,

and other public libraries of the State of Maharashtra and through the internet

resources like search engines and websites, from where the researcher carried

out her Library Research.

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 VIII. Aims and Objectives of the Study:

Research on this subject has been done with following aims and

objectives –

1. To expound the concept of Development of Constitution and the

methods which the legal systems of the present day have prescribed for

changing the existing status of law;

2. To highlight the problems arising from the violation or deprivation of

the rights of the individuals;

3. To study the situations in which there was justification for the

intervention of the courts to remedy the situation;

4. To evaluate the contribution of judiciary in the development of

Constitution of India through the method of judicial interpretation;

5. To study various norms of Constitutional interpretation, judicial

creativity, scope and effect of judicial review in respect of Fundamental

Rights;

6. To analyse and assess the role of judges, while interpreting the

provisions of Constitutional Law;

7. To examine the role of judiciary while protecting the Fundamental

Rights; especially the Rights of the individuals to Life and Personal

Liberty and the Rights of the Women.

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 IX. CHAPTER WISE DESCRIPTION OF THE THESIS:

The matters explored in this Thesis are presented in this report by

dividing its contents into the following seven (7) chapters –

CHAPTER I – ‘INTRODUCTION’ gives an outline of the research

work, the reasons which have prompted the researcher to take up the task, the

hypothesis formulated for study, the methodology adopted for study, the area

of research selected for study and the aims and objectives with which the

research work has been done.

CHAPTER II - ‘CONCEPTUAL FRAMEWORK OF

DEVELOPMENT OF CONSTITUTION AND RELATED MATTERS’

expounds the concept of Development of Constitution and points out various

methods; which the present day legal system recommend for being adopted to

allow a change to be introduced in the Constitutional framework so that there is

an effective response to the problem that is noticed because of deficiency in the

law and as a result of which there has been the violation or deprivation of the

rights of the individuals. On the sidelines of the same subject is discussed the

subject of ‘Judicial Interpretation’ in the exercise of which the courts adopt

various techniques for building up its response to the unseemly actions or

inactions of the institutions of State.

CHAPTER III – ‘PRINCIPLES OF CONSTITUTIONALISM’

discusses in the beginning the conventional principles of Constitutionalism,

such as, Rule of Law, Separation of Powers and Supremacy of the Constitution.

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Proceeding further, this chapter discusses the new principles such as the

Principle of Justice; Social, Economic and Political as embodied in the

Constitution and the Principle of Basic Structure of the Constitution as

formulated by the Supreme Court in its 1973 decision in Keshavananda

Bharathi case.

CHAPTER IV – ‘JUDICIAL REVIEW’ discusses in this chapter first

the conventional method by which the Courts examined the legislative

measures and administrative examinations of the authorities of the State and

proceeds further to examine the new techniques evolved by the court such as

Judicial Activism and Judicial Over-reach by which the courts dealt with cases

of violation of Fundamental Rights and provided remedies to the aggrieved

individuals by its decisions.

CHAPTER V – ‘PROTECTION TO LIFE AND PERSONAL

LIBERTY OF INDIVIDUALS’ deals with all those situations in which there

has been deprivation or violation of the Fundamental Rights affecting the life

or personal liberty of the individuals. The discussion makes a thread bare study

of the Right of individuals under the division of personal liberty and the

remedies provided in the Constitution for the purpose of their protection. The

study covers the mechanism formulated by the Courts to afford protection to

the individuals against the unjust legislative or executive actions of the

authorities of the State.

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 CHAPTER VI – ‘PROTECTION TO WOMEN’S RIGHTS’

discusses the decisions of the courts by which the courts afforded protection to

women in their rights, as far as their personality in society and in various

sectors of their career was concerned. It makes a special reference to the steps

taken by the Courts to implement the directives of the international

organizations for the protection of women against unjust assault and usurpation

of their rights.

CHAPTER VII – ‘CONCLUSION AND SUGGESTIONS’ gives a

summary of the work done, the findings drawn by the researcher and offers

necessary suggestions to improve the status of law to enable the agencies of the

State in violating the rights of the individuals and depriving them of the fruits

of liberty under the Constitution and to improve the role of judiciary to be more

proper and prominent to maintain and protect democratic status of our country.

X. Utility of the Research:

It is expected that the findings of this research will be of immense benefit

to all those who are concerned with the problem of protection to the

Fundamental Rights of the Individuals. They will be useful to the judicial, legal

and administrative fraternity who are dealing with matters of framing laws and

administering the same to deal with the problems of our society.

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