What Emerging Human Rights Jurisprudence Means

In one line

Emerging human rights jurisprudence means the body of rights the Indian courts have built rather than found, principally by reading content into article 21, and it exists because Part IV is unenforceable and Parliament was slow.

What the phrase means

Three elements, and each is worth stating.

Jurisprudence rather than legislation. The rights in question were not enacted. They were declared by courts in the course of deciding cases, and their authority is the authority of a judicial decision rather than of a statute.

Emerging rather than settled. The body is still growing, and a right recognised in one decade was not available in the previous one. Livelihood, shelter, food, education, health, a clean environment and privacy all entered article 21 at identifiable points, and each was contested when it did.

And human rights rather than legal rights generally. The subject is the claims a person holds against the State because they are a person, which is what distinguishes this jurisprudence from the ordinary development of contract or property law.

Why it emerged in India specifically

Four conditions, and all four were necessary.

A justiciable bill of rights with an entrenched remedy. Article 32 makes the remedy itself a fundamental right, so the Court could not be told by statute to stop.

An unenforceable social programme. Article 37 puts Part IV outside judicial remedy, so the material a court needed was present in the Constitution and unavailable through the ordinary route. The expansion of article 21 is the workaround for article 37, and stating it that way explains the whole module.

A text capable of bearing the weight. Article 21 speaks of life and of personal liberty and of procedure established by law, and none of those three words is self-defining. A narrower text would not have permitted the construction.

And a constituency that could not use the ordinary process. The people whose rights were at stake could not afford litigation, could not draft a petition, and in many cases could not read. The procedural innovations exist because of who the litigants were, and [Public Interest Litigation, and Why It Matters Here] takes that.

The two directions of growth

Substantive growth, which is the enlargement of what article 21 contains. From a guarantee against deprivation of physical life and liberty, the article came to carry livelihood, shelter, health, food, education, a clean environment, legal aid, a speedy trial, privacy and the right to live with human dignity.

Procedural growth, which is the enlargement of who may come, how they may come and what the court may do. The relaxation of locus standi, the epistolary jurisdiction, the appointment of commissioners to find facts, continuing mandamus and monitoring, and compensation in public law are all procedural, and none of them is in the Constitution.