FUNDAMENTAL RIGHTS AS NATURAL RIGHTS: A VIEW FROM THE INDIAN PERSPECTIVE

Abstract The philosophical background of Indian Constitutional Law in general and of fundamental rights in particular has been matter of great debate. This question becomes all the more challenging because, as the Indian judiciary has recognized, standard Western models of jurisprudence cannot be transplanted in India, given its peculiar socioeconomic conditions. In these circumstances the Supreme Court has often played a pioneering role to read fundamental rights in the interest of society. In this paper, the authors conduct a historical analysis of Constituent Assembly Debates and thereafter carefully uncover the nuanced position adopted by the Indian judiciary with respect to the philosophical foundations of Part III of the Constitution. The authors discover inconsistent and sometimes even wholly contrary philosophical positions adopted by the Court, characteristic of a tussle between positivist and natural rights jurisprudence. After thoroughly engaging with the rationale of the Court over several decades the authors find that the Indian judiciary has a strong leaning towards a natural rights position. The authors advocate in favour of this naturalist position because this approach, as is discussed in the paper, revitalises democracy by linking fundamental rights to the concept of rule of law. Further, the authors acknowledge that the natural rights position adopted by the Supreme Court has a socialistic tendency which is at variance with Western philosophy. The authors also identify and discuss certain controversial implications of the unique “inalienable but not absolute” stance of the Supreme Court in viewing fundamental rights.