The fundamental rights recognised in Part III are identified in the level of abstraction- that is, equality, liberty, and expression.
How the courts recognise unenumerated rights or derivative rights?
The Ninth Amendment to the US Constitution states that the “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”. Though the Indian Constitution does not contain such a provision, it is implied that the rights enumerated in Part III are not exhaustive. The fundamental rights recognised in Part III are identified in the level of abstraction- that is, equality, liberty, and expression.
The Constitution does not provide a detailed enumeration of the facets of each enumerated right. The Courts, while determining the scope of an enumerated right, lay down its facets and conceptions. For example, Courts have held that the true essence of the right to equality is not encompassed in formal equality where all persons are treated alike irrespective of the unequal socioeconomic status but in substantive equality.
Similarly, Supreme Court has in numerous judgments held that the right to life and liberty recognised under Article 21 would be obscure if other crucial facets of liberty are not recognised. It is in this vein that the Court recognised, inter alia, the right to livelihood, the right to speedy trial, and the right to education.
Positive Rights and Negative Rights
Fundamental rights are characterized as positive rights and negative rights. In fact, some draw a distinction between fundamental rights (Part III) and the Directive Principles of State Policy (Part IV) by arguing that the former consists of negative rights and the latter of positive rights. In constitutional theory, negative rights are understood to involve freedom from governmental action whereas, positive rights place a duty on the State to provide an individual or a group with benefits which they would not be able to access by themselves.
Two Thematical Facets of Fundamental Rights
Indian jurisprudence on the scope of fundamental rights can be divided into two thematical facets. In the first facet, the distinction between negative rights and positive rights faded with the harmonious reading of fundamental rights and Directive Principles of State Policy by the courts. The Courts used the Directive Principles to inform the scope of fundamental rights.
In Unnikrishnan v. State of Andhra Pradesh, the issue before the Court was whether the Constitution guarantees a fundamental right to education to its citizens. The Court held in the affirmative and traced the right to Article 21 and the Preamble of the Constitution. Jeevan Reddy, J. writing for the majority observed that education is of transcendental importance in the life of an individual without which the objectives set forth in the Preamble cannot be achieved. It was further emphasised that the Constitution expressly refers to education in Articles 41, 45, and 46 of the Constitution which indicates the importance conferred to it.
However, the Court limited the scope of the right to education in view of Article 45 which states that the State shall endeavour to provide free and compulsory education for all children until they complete the age of fourteen years. Thus, the Court held that the Constitution guarantees a right to free education for all children until they complete the age of fourteen years.
In the second facet, the Courts read fundamental rights to include both negative and positive postulates independent of the Directive Principles of State policy. YV Chandrachud, C.J. writing the opinion for the majority in Minerva Mills v. Union of India, observed that fundamental rights deal with both negative and positive postulates.
In Indibily Creative Private limited v. Government of West Bengal, the court observed that Article 19 imposes a negative restraint on the State to not interfere with the freedoms of all citizens and a duty on the State to ensure that conditions for the free and unrestrained exercise of the freedom are created.
In Justice KS Puttaswamy v. UOI (2017), a nine-Judge Bench of the Court held that the Constitution guarantees the right to privacy. The Court expressly held that the right to privacy includes both negative and positive postulates. The negative postulate consists of the right to be left alone and the positive postulate places a duty on the State to adopt measures for protecting and safeguarding individual privacy.
The second facet on the scope of fundamental rights is now cemented in Indian constitutional jurisprudence. Fundamental rights consist of both negative and positive postulates preventing the State from interfering with the rights of the citizens and creating conditions for the exercise of such rights respectively.
This understanding of fundamental rights is unique to Indian constitutional jurisprudence. Fundamental rights have been construed in this wide manner by Indian Courts because of the constitutional conception of the role of the State. Viewing fundamental rights purely as negative rights runs the risk of undermining the role of the State.
Fundamental rights are not merely a restraint on the power of the State but provisions which promote and safeguard the interests of the citizens. They require the State to restrain its exercise of power and create conducive conditions for the exercise of rights. If such a positive obligation is not read into the State’s power, then the rights which are guaranteed by the Constitution would become a dead letter. This is because the question of whether the State is curtailing the rights of citizens would only arise if the citizens have the capacity and capability to exercise such rights in the first place.
Approaches to identifying unenumerated rights- specific rights approach and the identity approach
The courts identify unenumerated rights by tracing them either to specific provisions of Part III of the Constitution or to the chief values which the Constitution espouses. The premise of this exercise undertaken by courts is that the rights guaranteed in Part III of the Constitution can only be effectively secured if certain other entitlements are safeguarded. That is, the rights guaranteed expressly by the Constitution would remain parchment rights, if conditions for the effective exercise of them are not created.
To put it differently, rights will only be secured if citizens possess capabilities to exercise the right. In fact, the positive and negative postulations of fundamental rights arise from this broad understanding of the purpose served by fundamental rights. In this method of deriving rights, the court traces unenumerated rights to specific provisions of the Constitution such as liberty (Article 21) or freedom of expression (Article 19) or equality (Article 14).
In the second method used by courts to derive unenumerated rights, rights are not traced to specific fundamental rights but to the values or the identity of the Constitution.
This method of deriving unenumerated rights attained prominence after the judgment of this Court in RC Cooper v. Union of India which held that fundamental rights are not water-tight compartments and that the thread of reasonableness contemplated in Article 14 runs through Article 21 as well. The aspirational values of the Indian Constitution reflected in the preamble is to secure justice, liberty, equality, and fraternity to all its citizens.
However, constitutional identity is not readily borrowed from preambular values. Constitutional identity is secured by a gradual process which is characterized by a dialogue between the institutions of governance (such as the legislature, the executive, the courts, and the statutory commissions) and the public over internal and external dissonances.
There is external dissonance when there is an apparent conflict between a Constitution’s aspirational ideals and the socio-political reality. It is characterized by internal dissonance when there is a conflict between the provisions of the Constitution.
The Indian jurisprudence on the equality code is an apt example of how constitutional identity has evolved through dialogue between various stakeholders to advance the conception of factual equality. Supreme Court has been using both the above mentioned approaches to identify unenumerated rights.
For example, the Court in Justice KS Puttaswamy (9J) held that the Constitution guarantees the right to privacy by using both the specific rights approach and the identity approach. The Court grounded the right to privacy in the concepts of liberty, freedom, dignity, and the idea of individual self-development which runs through the provisions of the Constitution.
The intimate zone is shielded from State regulation because relationships operate in a ‘private space’ and decisions taken in a private space in exercise of an individual’s autonomy (such as the choice of partner, or procreation) are ‘private activities.’ This Court in Justice KS Puttaswamy (9J) (supra) held that privacy is intrinsic to the realization of constitutional values and entrenched fundamental rights. The judgment emphasized the importance of being left alone and the autonomy of individuals to take crucial decisions affecting their personhood, such as procreation and abortion.
Justice DY Chandrachud in Supriya @ Supriyo Chakroborty v. Union of India (2023)
 State of Kerala v. NM Thomas, 1976 SCR (1) 906
 Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545
 Hussainara Khatoon v. Home Secretary, (1980) 1 SCC81
 Also see Mohd. Hanif Qureshi v. State of AP, 1959 SCR 629
 (1993) 1 SCC 645
 AIR 1980 C 1789
 8 (2020) 12 SCC 436
 Plurality opinion authored by Justice DY Chandrachud (paragraph 158)
 (1970) 1 SCC 248