Evolution of Fundamental Rights in India — and How Britain Has Rights Without a Constitution
India borrowed the idea of Fundamental Rights from America — then deliberately changed one crucial phrase on the advice of a US Supreme Court judge. Meanwhile Britain, with no written constitution at all, protects rights in an entirely different way. This is the story, simply told.
- 1. Indians were demanding a bill of rights from the 1890s — more than half a century before Independence.
- 2. India deliberately rejected the American phrase "due process of law" — on the advice of a US Supreme Court judge.
- 3. Twenty-eight years later, the Supreme Court brought due process back through the back door.
- 4. India started with seven Fundamental Rights and now has six — one was deleted.
- 5. Britain has no written constitution, yet British courts cannot strike down a law even when it violates human rights. They can only point out the violation.
Part 1 — How Fundamental Rights Grew in India
The demand did not begin in 1947. It began when Indians started asking the British for the same liberties Britons enjoyed at home.
The milestones, in plain language
- 1895 — Constitution of India Bill: the earliest Indian document demanding a written list of rights such as free speech and equality before law.
- 1925 — Commonwealth of India Bill: prepared under Annie Besant's initiative, declaring a set of individual rights.
- 1928 — Nehru Report: a committee under Motilal Nehru produced a draft constitution containing 19 fundamental rights. This is India's first serious bill of rights.
- 1931 — Karachi Session of the Congress: the single most important milestone. The resolution on Fundamental Rights and Economic Policy — drafted by Jawaharlal Nehru and moved by Sardar Patel — promised not just civil liberties but also social and economic guarantees like a living wage and free primary education.
- 1945 — Sapru Committee Report: proposed dividing rights into justiciable (court-enforceable) and non-justiciable — the seed of our split between Fundamental Rights (Part III) and Directive Principles (Part IV).
- 1947 — Constituent Assembly: an Advisory Committee under Sardar Vallabhbhai Patel, with a sub-committee on Fundamental Rights, drafted what became Part III.
- 1950 — Part III in force: seven Fundamental Rights, enforceable directly in the Supreme Court under Article 32, which Ambedkar called the "heart and soul of the Constitution."
- The original seven included the Right to Property (Articles 19(1)(f) and 31).
- It repeatedly blocked land-reform laws, triggering a long tussle between Parliament and the courts.
- The 44th Amendment Act, 1978 removed it from Part III.
- Property is now a legal (constitutional) right under Article 300A — you can go to a High Court, but not directly to the Supreme Court under Article 32.
- Later addition: the 86th Amendment, 2002 inserted Article 21A — the Right to Education for children aged 6–14.
Part 2 — The American Connection
Ask where India got the idea of a court-enforceable list of rights, and the answer is the United States Bill of Rights — the first ten amendments to the US Constitution, ratified in 1791.
What India took from America
- The very concept of Fundamental Rights written into the constitution itself.
- Judicial review — courts empowered to strike down laws that violate those rights.
- The idea of a supreme, written constitution above ordinary legislation.
- Also from the US: the impeachment procedure, the Vice-President's role as presiding officer of the upper house, and removal of judges.
What India changed — deliberately
- Restrictions are written in. The US First Amendment says Congress "shall make no law" abridging free speech — sounding absolute. India's Article 19 grants freedoms and then lists "reasonable restrictions" in the very next clauses. India chose honesty on the face of the text.
- Rights are amendable. Indian Fundamental Rights can be amended under Article 368 — subject to the basic structure doctrine.
- Directive Principles sit alongside as a non-justiciable companion — an idea from Ireland, not America.
- While drafting, India's constitutional adviser B.N. Rau travelled abroad and met US Supreme Court Justice Felix Frankfurter.
- Frankfurter warned against the American phrase "due process of law" — it gave judges enormous, undemocratic power to strike down social legislation.
- India took the advice. Article 21 was written with the narrower phrase "procedure established by law" — borrowed from Japan.
- The consequence: in A.K. Gopalan v. State of Madras (1950), the Court held that if a law laid down any procedure, that was enough — however unfair.
- The twist: in Maneka Gandhi v. Union of India (1978), the Court held the procedure must be fair, just and reasonable — effectively reading due process back in. India rejected the American phrase, then arrived at the American result.
| Point | 🇺🇸 United States | 🇮🇳 India |
|---|---|---|
| Where rights live | Bill of Rights — first 10 Amendments (1791) | Part III — Articles 12–35 (1950) |
| Wording | Phrased in near-absolute terms | Freedoms plus written "reasonable restrictions" |
| Key phrase | "Due process of law" | "Procedure established by law" (from Japan) |
| Enforcement | Ordinary courts, up to the Supreme Court | Direct writ petition — Article 32 (SC) and 226 (HC) |
| Amendable? | Very difficult — needs states' ratification | Yes, under Art. 368 — but not the basic structure |
| Duties | None listed | Fundamental Duties added in 1976 (from the USSR) |
Part 3 — Rights Around the World
India was not copying blindly. The Constituent Assembly studied many models and picked what suited Indian conditions.
| Country | Document | What makes it distinctive |
|---|---|---|
| France | 1789 Declaration of the Rights of Man and of the Citizen | The revolutionary ancestor of all modern rights charters — "liberty, equality, fraternity", which shaped our Preamble |
| United States | 1791 Bill of Rights | First to put enforceable rights inside a written constitution |
| Japan | 1947 Constitution | Source of India's phrase "procedure established by law" |
| Germany | 1949 Basic Law | Opens with "human dignity is inviolable"; an eternity clause makes core rights permanently unamendable — a post-Nazi safeguard |
| Canada | 1982 Charter of Rights and Freedoms | Has a "notwithstanding clause" letting a legislature override certain rights temporarily — a rare compromise between courts and parliament |
| South Africa | 1996 Bill of Rights | Among the most expansive — makes housing, healthcare, food and water justiciable, not merely directive |
- India took the American model of enforceable rights, but wrote in limits like most later constitutions did.
- Germany's eternity clause is unamendable by text; India reached a similar place through a judgment — the basic structure doctrine of Kesavananda Bharati (1973).
- South Africa made social rights enforceable; India placed them in the non-justiciable Directive Principles — though courts have since read many into Article 21.
Part 4 — The UK Puzzle: Rights Without a Constitution
- Britain does not lack a constitution. It has an uncodified one.
- It is simply not written in a single document — it is spread across statutes, court judgments, conventions and authoritative texts.
- So the accurate phrasing is "unwritten/uncodified constitution", not "no constitution."
How British rights actually work
- Residual liberty: the traditional British principle is that you may do anything the law does not forbid. Freedom is what is left over after the law has spoken — rather than a list handed down.
- Historic documents: the Magna Carta (1215), the Habeas Corpus Act (1679) and the Bill of Rights (1689) built up protections piece by piece over centuries.
- Common law: judges developed liberties case by case — which is exactly why Dicey said British rights are the result of judicial decisions, not their source.
- Parliamentary sovereignty: the defining feature. Parliament can make or unmake any law, and no court can strike down an Act of Parliament.
The Human Rights Act, 1998 — "bringing rights home"
- The UK helped draft, and in 1951 ratified, the European Convention on Human Rights (ECHR). But for decades a Briton had to travel to Strasbourg to enforce it.
- The Human Rights Act 1998 incorporated Convention rights into domestic law so cases could be heard in British courts.
- Public authorities must act compatibly with those rights, and courts must read legislation compatibly so far as possible.
- The crucial limit: if a statute simply cannot be read compatibly, the court issues a "declaration of incompatibility." That declaration does not strike the law down and does not affect its validity. It is a polite constitutional cough — Parliament decides whether to change the law.
- A Bill of Rights Bill was introduced in 2022 to replace the Human Rights Act, but it never became law.
- The Human Rights Act 1998 therefore remains in force.
- Debate continues, including calls from some quarters for the UK to withdraw from the ECHR altogether.
- It is a genuinely useful contemporary example of a country arguing over how much power judges should have on rights — the same tension India settled through Kesavananda.
India wrote its rights down and gave courts the power to enforce them. Britain kept its rights in the common law and gave Parliament the last word. Two democracies, two answers to the same question: who should have the final say on liberty? — Legacy IAS Faculty
The Three-Line Summary
- India: rights are written in the Constitution, and the Constitution is supreme. Courts strike down violating laws.
- USA: rights are written in the Bill of Rights, phrased broadly, with courts interpreting them expansively.
- UK: rights come from statute and common law, and Parliament is supreme. Courts can declare a conflict but not cancel the law.
Frequently Asked Questions
From which country did India borrow Fundamental Rights?
From the United States — specifically the Bill of Rights, the first ten amendments to the US Constitution ratified in 1791. India also took judicial review from the American model. However, India wrote reasonable restrictions into the text of its rights, and took the phrase "procedure established by law" in Article 21 from Japan rather than the American "due process of law."
Why does India have six Fundamental Rights instead of seven?
The original Constitution had seven, including the Right to Property. Because it obstructed land reform legislation, the 44th Constitutional Amendment Act, 1978 removed it from Part III. Property is now a legal right under Article 300A, enforceable in a High Court but not through a direct Article 32 petition to the Supreme Court.
How does the UK have fundamental rights without a written constitution?
The UK has an uncodified constitution rather than none. Rights come from historic statutes such as the Magna Carta (1215), Habeas Corpus Act (1679) and Bill of Rights (1689), from common law developed by judges, and from the Human Rights Act 1998, which brought the European Convention on Human Rights into domestic law. Because Parliament is sovereign, however, British courts cannot strike down an Act of Parliament; they can only issue a declaration of incompatibility, leaving it to Parliament to amend the law.
What is the difference between "due process of law" and "procedure established by law"?
"Due process of law" is the American standard, allowing courts to examine whether a law is fair and reasonable in substance. "Procedure established by law", used in Article 21 and borrowed from Japan, originally required only that some legal procedure be followed. India chose the narrower phrase partly on the advice of US Justice Felix Frankfurter to B.N. Rau. In A.K. Gopalan (1950) the Court read it literally, but in Maneka Gandhi (1978) it held that the procedure must be fair, just and reasonable, effectively importing due process.
Which session of the Congress is most important for Fundamental Rights?
The Karachi Session of 1931, which adopted the Resolution on Fundamental Rights and Economic Policy. Drafted by Jawaharlal Nehru and moved by Sardar Patel, it committed the Congress not only to civil liberties but also to social and economic guarantees, foreshadowing both the Fundamental Rights and the Directive Principles of State Policy.
Key Takeaways
- Evolution: 1895 Constitution of India Bill → 1928 Nehru Report (19 rights) → 1931 Karachi Session → 1945 Sapru Report → Patel's Advisory Committee → Part III in 1950.
- Seven became six: Right to Property removed by the 44th Amendment (1978) → now Article 300A. 21A added by the 86th Amendment (2002).
- USA gave us the concept of Fundamental Rights and judicial review — but India wrote in reasonable restrictions.
- The Frankfurter story: India chose "procedure established by law" (Japan) over "due process" — then Maneka Gandhi (1978) effectively brought due process back.
- UK: uncodified constitution, parliamentary sovereignty, and the Human Rights Act 1998 — courts issue a declaration of incompatibility, never a strike-down.
- Compare: Germany's eternity clause, Canada's notwithstanding clause, South Africa's justiciable social rights.
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