Author: Somya Jain & Co-author: MANASVI MARU, INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD GUJARAT INDIA
Abstract
As India completes 75 years as a Republic, Fundamental Rights have travelled from mere negative injunctions against the State to a positive charter of dignity. This transformation has been guided by a single, unwritten principle – constitutional morality. This article traces that journey from A.K. Gopalan to Puttaswamy and beyond.
Keywords:
Constitutional Morality, Fundamental Rights, Article 21, Transformative Constitution
INTRODUCTION
Who writes a constitution for a broken Nation?
In December 1946, it was not one man, but four visions colliding – Dr. B.R. Ambedkar who has himself faced untouchability, Jawaharlal Nehru who dreamt of a secular modern India, Sardar Vallabhbhai Patel who had to stitch 565 Princely states, and Dr. Rajendra prasad who had to hold it all together
Their India of 1949 was not the India of 2024. It was a devastated nation. Partition had left 15 million displaced and a million dead, refugee camps stretch from Amritsar to Kolkata and feudal zamindari still ruled in Rajasthan and 95 percent of Indians were illiterate ,and women could not inherit the property. In a village in Gujarat, an untouchable was still not allowed to draw water from the same well.
I. THE FIRST REPUBLIC (1950-1977): RIGHTS AS NEGATIVE RESTRAINTS
The original imagination was defensive. Part III was a shield against a colonial state. In A.K. Gopalan v. State of Madras (1950), the Supreme Court gave a narrow reading – “procedure established by law” means any procedure made by Parliament. Life meant mere animal existence. Rights were isolated silos, and societal morality was supreme.
II. THE SECOND REPUBLIC (1977-2017): THE MANEKA EXPLOSION
Maneka Gandhi v. Union of India (1978) changed everything. The Court held that procedure must be fair, just and reasonable, and created the Golden Triangle of Article 14, 19 and 21. Suddenly, life meant dignity.
The Court started finding new rights inside Article 21 – right to livelihood in Olga Tellis, right to education in Mohini Jain, right to clean environment in M.C. Mehta. This was reimagination through judicial creativity.
III. THE THIRD REPUBLIC (2017-PRESENT): THE MORALITY TURN
Post-2017, the question shifted from “what is life?” to “whose morality wins?” – society’s or Constitution’s? The answer was given by Constitutional Morality – the idea that the Constitution has its own morality of equality, dignity, autonomy, which is supreme over popular morality.
1. K.S. Puttaswamy v. Union of India (2017): Privacy declared as Fundamental Right. The bedrock for dignity.
2. Navtej Singh Johar v. Union of India (2018): Decriminalized homosexuality. The Court said societal morality may disapprove, but constitutional morality must protect the minority. History owes an apology.
3. Joseph Shine v. Union of India (2018): Adultery law struck down. Women are not property of husbands.
4. Indian Young Lawyers Association v. State of Kerala (Sabarimala) (2018): Exclusion of women held unconstitutional. Custom, however old, cannot trump equality.
In all cases, the law was validly enacted, supported by society, yet unconstitutional – because it violated the conscience of the Constitution.
IV. REIMAGINING FOR THE NEXT 25 YEARS
The next frontiers are already here:
(a) Digital Rights – Right to Internet as part of Article 21 in Faheema Shirin (2019), Right to be Forgotten, protection against AI bias;
(b) Climate Justice – In M.K. Ranjitsinh v. Union of India (2024), Supreme Court recognized right to be free from adverse effects of climate change under Article 21;
(c) Bail as a Right – emphasis that Bail is rule, Jail is exception is a new avatar of Article 21.
CONCLUSION
The journey of the Republic is a journey from law to justice. In 1950, we had Fundamental Rights on paper. In 2025, we have a living morality behind them. As Ambedkar feared, if we lose constitutional morality, our Constitution will become mere paper. If we cultivate it, those same eleven words of Article 21 will be enough for the next 75 years. For 75 years we asked: What can the State not do? For the next 75, we must ask: What must we do to make dignity real for the last Indian? That is reimagining.
Footnotes
1. Constituent Assembly Debates, Vol. VII (4th November 1948).
2. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
3. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
4. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.
5. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
6. Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
7. M.C. Mehta v. Union of India, AIR 1987 SC 1086.
8. Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966).
9. Govt. of NCT of Delhi v. Union of India, (2018) 8 SCC 501.
10. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
11. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
12. Joseph Shine v. Union of India, (2019) 3 SCC 39.
13. Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.
14. Faheema Shirin v. State of Kerala, 2019 SCC OnLine Ker 1786.
15. M.K. Ranjitsinh v. Union of India, 2024 SCC OnLine SC 428.
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