Introduction
Recently, a petition in the Supreme Court of India (“the Court”) sought restrictions on protests on a national highway, and the Court canvassed it as a conflict between two fundamental rights: the protestors’ right to assembly and the commuters’ right to movement.1 Similarly, when a law excluding menstruating women from accessing temples was challenged, the women’s individual right to equality in professing and practicing religion was apparently in conflict with the temple’s right to manage its affairs.2
The Court’s framing of issues in these cases is not novel; it frequently decides conflicts of constitutional rights. Rights-conflicts are unavoidable under the Indian Constitution for two reasons. First, the Constitution recognizes a wide range of justiciable fundamental rights: civil and political individual rights, like the freedom of speech,3 the right to practice and profess religion,4 and the right to life and liberty;5 socio-economic individual rights, both enumerated6 and judicially recognized; the right to equality and against discrimination;7 and group rights, like a religious denomination’s right to manage its affairs.8 Second, these rights have both negative and positive components — they “prevent the State from interfering with individuals” and also “require the State to take positive action.”9 The positive and negative aspects of rights often compete or conflict with each other.
When faced with such conflicts, the Court has lacked uniformity or structural consistency. Its balancing process has been ad-hoc: a petitioner approaches the Court claiming that a law or state action has infringed her constitutional right; the state defends the law by invoking a competing fundamental right, claiming the law must survive because it enforces a positive constitutional right; the Court articulates the dispute as a contest of competing fundamental rights — right to life v. right to privacy, or right to speech v. right to movement — and then chooses one right as the categorical and unconditional winner. In most cases the winner is a right the Court presumes to further ‘collective interests.’ The competing right, usually an individual civil-political right, loses wholesale; even when, in fact, no conflict exists.
On closer scrutiny one encounters many questions. Is the state, in fact, acting on a positive constitutional obligation? How did the state action affect negative rights, and to what extent? Could the state have achieved its aims without implicating the negative right? Rarely does the Court answer these questions. Sometimes it fails to identify the narrow positive right on which the state is acting. At other times it fails to establish a nexus between the constitutional right and the state action. And in most cases, it fails to analyse the necessity of the state action.
The balancing exercise is inconsistent, nebulous, and vague. In some cases the Court has ‘balanced rights harmoniously’;10 in others it has set out a ‘neutralizing device’ test.11 While balancing, it engages in expansive flourishes on principle but rarely locates the rights-conflict at a granular level. Even in the rare cases where it does so, it does so mechanically, without comprehensive reasoning.
This paper attempts to demonstrate that gap. Part II describes two contrasting normative models of rights adjudication — the ‘specification’ model and the ‘balancing’ model — to set a benchmark. Part III explains the framework of positive and negative constitutional rights in India and the manner in which they conflict. Part IV analyses how the Court has resolved rights-conflicts and the problems in its reasoning. Part V discusses the institutional consequences. Part VI examines the urgent need to resolve these issues. Finally, Part VII suggests a comprehensive analytical framework to narrowly locate the conflict of rights and structure the balancing exercise.
Theories for resolving conflict of rights
Rights adjudication globally follows two broad templates: the ‘specification’ model and the ‘balancing’ model. Each draws sustenance from different theories of rights. This paper does not support any one theoretical conception. The aim is not to assess these models or their merits, but to point out how the Court follows neither. The central proposition is simple: irrespective of the form of balancing adopted, the Court has failed to strictly follow a structure, methodology, and reasoning while balancing rights. As a result, rights adjudication in India — under any model — has often been ambiguous and arbitrary.12
In the rights-specification model, rights are accorded special moral, political, and philosophical status; they act as ‘trumps’ over all other interests or as ‘side constraints’ because of their categorical nature.13 Whenever a right comes into conflict with another interest, the right always prevails. Given that they are categorical, rights must be carefully structured14 — their scope and substance specifically defined after considering context and their relationship with other rights and interests in society. Conflicts between competing rights are internally resolved before defining the substance of a right.1516 This model is largely followed by constitutional courts in the United States.17
Adjudication under this model can be illustrated by a hypothetical. A law bans loudspeakers in residential areas. A person ‘P’ uses a loudspeaker for a political rally next to a residential area; the state brings an action. P claims the law bars her constitutional right to speech, which includes broadcasting political views over a loudspeaker. The state claims the law protects residents’ privacy and their right to a peaceful environment. A specification court will first define the boundaries of both rights — perhaps holding that P’s speech right applies in public, not private, spaces, and that speech disturbing residential solitude is not constitutionally protected. The boundaries, once drawn, do not conflict.
No matter where the court draws the final line, it does so categorically. Any potential conflict is resolved during the exercise of defining the limits and contents of the rights and applying them to the facts. Rights, once defined, have a conclusory status; they act as trumps. The reasoning under this model runs toward the specification of rights: all competing interests are balanced before the rights are finally articulated. But once articulated, they impose specific peremptory duties on the state.
In the balancing model, by contrast, the content and boundaries of rights are stated generally and broadly.1819 A broad definition of competing rights is articulated first, without taking conflicting considerations into account; these broad rights are then balanced by the court. Rights are articulated at the level of general values or principles, not as categories with special normative force, and they are not immune from balancing.20 The corresponding duty is tentative, subject to the outcome.21 The only categorical duty is on the court to consider the conflicting rights and interests while balancing.22
During balancing, the court weighs even trivial interests under broad umbrella rights of freedom of speech or free development of personality.23 Kai Möller calls this ‘rights inflation’ — trivial interests and even ‘evil activities’ such as a ‘right to feed pigeons in a park’ must also be recognized and balanced.24 The most widely accepted doctrine of rights-balancing is proportionality.25 Variations have been used in Germany, Canada, Israel, South Africa, and the European Court of Human Rights.
Proportionality roughly consists of the following steps:26 (a) a court considers whether a measure affects a right, the prima facie right being articulated widely and generally; (b) if it does, the court assesses whether the interference is justified, through four sub-tests — legitimate aim (whether the interference furthers a sufficiently important aim),27 rational nexus (whether the measure is rationally connected to that aim),28 necessity (whether the measure impairs as little of the right as possible),29 and proportionality stricto sensu (whether the benefits of infringement outweigh the loss to the protected right). The measure is constitutional only if it passes through all the steps.30
“The distinct contribution of each stage makes it much easier to adopt an orderly approach to questions of institutional competence and legitimacy.”Julian Rivers, on structured proportionality
One significant question arises: what happens when the state invokes a positive constitutional right — rather than a mere interest — to justify interference with a negative right? The court will normatively prioritize one right, principle, or value and justify it based on context, constitutional priorities, and the values of society.31 Crucially, however, a court makes this value judgment only once the law passes the first three steps of the proportionality test.32 Frequently the law will not pass them; but when it does, the court compares the effects of the measure with the benefits of the infringement. This is the stage at which it undertakes moral reasoning — contextual and marginal, not a generic principle-level right-to-right comparison.33
Having described the two broad methods, it is important to understand the nature of constitutional rights in India, the manner in which they conflict, how the Court has resolved these conflicts, and the problems with its reasoning.
Fundamental Rights in India: positive and negative rights
Today the Court enforces a thick definition of constitutional rights. It has interpreted the right to life and liberty (Article 21) to include the right to live with dignity and “all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter.”34 But such an expansive interpretation was not obvious when the Constitution was adopted. In its bare text, Article 21 is a negative right: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Indeed, most fundamental rights in Part III are negative rights.
It is Part IV — the Directive Principles of State Policy — where one finds the socio-economic and governance objectives of the state, such as a living wage, free legal aid, and welfare. But the DPSPs are non-enforceable; they were adopted as guidelines and create no constitutional duties. Over the years, the Court has incrementally infused fundamental rights with the contents of the DPSPs.3536 The lynchpin is Article 21, now interpreted to include the rights to health, education, shelter, food, sleep, and environmental protection. In 2005, Parliament passed a constitutional amendment enumerating the universal right to primary education.37 Most socio-economic rights are positive rights imposing a corresponding positive duty on the state.
Socio-economic rights are not the only source of positive duty. Civil-political rights also impose positive obligations. The right to free speech imposes not only a negative duty on the state not to interfere, but a positive duty to enable citizens to receive government information so they can fully exercise that right.38 An example is the Right to Information Act, passed in 2005 to increase transparency and accountability and to strengthen citizens’ right to free speech and information. Among the rights discussed below, the Constitution does not textually prioritize one set over another — and so the Court has used its discretion to prioritize values and rights through an interpretative exercise.
Balancing of rights by the Supreme Court: an unstructured endeavor
The Court has characterized its duty as that of a “balancing wheel between the rights.”39 In most cases it has done a broad, principle-level right-to-right balancing and given categorical preference to one right or value.40 The criticism here is not that the Court prioritized the wrong principles — it is fully within its authority to articulate a guiding set of values, and may rely on a sense of intuitive preference. But when it does so, it must strongly reason and justify its decision within the context of the case. It has failed to establish “a genuine conflict between the right and a relevant competing interest which cannot be resolved in a less restrictive way.” As a result, the Court has rarely contextualized the conflict down to the facts; it has weighed rights “arbitrarily or unreflectively, according to customary standards and hierarchies.”41
Right of speech v. right to live peacefully
In In Re Noise Pollution,42 the petitioner sought rigorous enforcement of laws imposing night-time curfews on loudspeakers and firecrackers. The Court directed strict enforcement and issued additional directions on acceptable noise levels and the manufacture of firecrackers, grounding its reasoning in the right to life, which includes the right to live peacefully with dignity.43 Business undertakings contended that the directions affected their rights to speech and trade.44
The Court concluded that the freedom of speech under Article 19 does not include the right to cause noise pollution or ‘aural aggression,’ because this would violate the listeners’ right to “a peaceful, comfortable and pollution-free life.”45
“Nobody can claim a right to make his voice trespass into the ears or mind of others. Nobody can indulge in aural aggression.”In Re Noise Pollution (2005)
At first blush the reasoning seems intuitively obvious — a right to speech cannot include a right to harm others. But the problem is not the outcome; it is the lack of reasoning and factual contextualization. The Court spent no time contextualizing the dispute; it presumed a conflict between the two rights. It did not define ‘aural aggression’ or delimit the boundaries of free speech, nor establish the boundaries of the residents’ right to a peaceful life or the corresponding state duties. It could have said that noise over 120 dB is aural aggression which the state is duty-bound to prevent. No such line was drawn, and ambiguous directions were passed.
One may ask: why does a granular analysis matter, if the outcome is the same? In this easy case it would not change. But consider a harder one — what if residents sought to shut down a mosque on grounds of noise pollution? Religious speech has stronger protection. To shut down a mosque because a resident claims the azan causes ‘aural aggression’ would be perverse. Here it is not enough to adjudicate at the generality of principles: the Court must determine the legitimate interest of residents, whether lesser restrictive alternatives exist, and whether the alleged discomfort of some is worth sacrificing the religious right of thousands. Yet the Court now cites In Re Noise Pollution as precedent for an unconditional preference of Article 21 over Article 19.
Right to speech v. right to reputation
A typical example of the Court’s undefined process is Subramanian Swamy v. Union of India,46 where the petitioner challenged the criminal-defamation law for its chilling effect on free speech. The Court upheld the law, reasoning that free speech must be balanced with the constitutional values of ‘fraternity’ and the ‘right to reputation,’ part of the judicially recognized right to dignity under Article 21. It framed the issue as a broad conflict — the accused’s free speech against constitutional fraternity and the complainant’s reputation — and prioritized fraternity and dignity, relying on In Re Noise Pollution for that categorical preference.47
The problem is the manner of balancing. Putting the cart before the horse, the Court began with an open-ended moral comparison between individual liberty and collective interest. Under proportionality, moral reasoning is the final step, preceded by assessments of rational nexus, necessity, and legitimacy. What should have been last was undertaken first, while the other steps were dispensed with. The Court presumed the statute had a rational nexus with protecting dignity; it did not analyze whether criminalizing defamation was disproportionate, nor whether less restrictive civil remedies — libel and slander — were sufficient.4849
Right to protest v. right to enjoy property
In Mazdoor Kisan Shakti Sangathan v. Union of India,50 residents of an area where protests were held sought protection of their right to peaceful enjoyment of property.51 Relying on Subramanian Swamy, the Court reiterated a principled preference of the right to life over the right to speech,52 concluding at a general level that collective and community interests must prevail. It devised a mediating device — protests could be carried out only in a regulated, guarded, designated place.5354 The glaring issue is the absence of any nexus showing that this measure was a proportionate intrusion, that it was rationally connected to a more peaceful environment, or that it was the least restrictive alternative. Does the peaceful environment of a few residents justify banning the peaceful protest of thousands on a matter affecting millions?
Right against compelled speech v. right to information
In Union of India v. Motion Picture Association,55 film exhibitors challenged ‘must-carry’ regulations compelling them to play educational documentaries. The Court held that a must-carry provision furthering “informed decision-making, which is the essence of the right to free speech,” does not violate that freedom,56 so long as it is non-partisan, non-propagandist, and discloses important information instrumental to the free speech of listeners. The limits of the speech right were thus defined after considering the listener’s right.57 Yet the Court did not pinpoint the conflict: when does the duty to facilitate information supersede the duty to protect the exhibitors’ speech? It failed to show a nexus between the law and its purported aim of furthering viewers’ decision-making.
Right to press v. right to a fair trial
One case that followed some structure is Sahara India v. SEBI.58 The question was whether press publication of private communications about a securities deal violated the right to a fair trial. Confronted with a conflict between the freedom of the press (Article 19) and the right to a fair trial (Article 21), the Court gave precedence to neither, holding both of ‘equal weight.’59 To mediate, it devised postponement orders as a neutralizing device and laid down a three-step test: such orders pass only where there is a real and substantial risk of prejudice; where no reasonable alternative — such as a change of venue — will prevent the risk; and where the salutary effects of the order outweigh the deleterious effects on free expression.60 It thus laid doctrinal foundations for balancing, even if confined to postponement orders.
Right to food v. right to privacy
The first and only case where the Court used the proportionality doctrine to balance competing rights is K.S. Puttaswamy v. Union of India.61 The constitutionality of a biometric program for accessing state subsidies was challenged. The Court noted a conflict between the negative right to informational privacy and the positive right to food, prioritized the right to food, and upheld a substantial part of the program.6263 That it preferred the right to life is not objectionable. The more fundamental question is whether the biometric program was a proportionate intrusion.
The Court held that the program prevents wastage of food and so furthers the right to life — a legitimate interest. But it did not provide sufficient justification on how the law was necessary and narrowly tailored, nor whether it was the least restrictive method.64 Had it done so, it would probably have concluded that the program was not necessary and that the right to life could have been advanced with far fewer intrusions into privacy.
These cases characterize rights-conflict adjudication in India. The Court has been firm in prioritizing the right to life and dignity, but it has not followed a comprehensive structure to determine the nature and manner of conflict. Keen on advancing its principled preference, it has frequently omitted the preliminary, instrumental steps — identifying how a state measure protects a right, and how competing rights conflict at the factual level. Its reasoning at the level of principle does not always reach the downstream facts.
Institutional risks of a multi-panel, polyvocal Court
The problem of ad-hoc balancing is not unique to India. But given the institutional structure of the Court, it poses greater risks than for an en banc court with a consistent judicial philosophy. The Court is polyvocal: it speaks not as a single court but from different benches of equal authority, which may hold different views on the same issue. Cases with similar facts go to different benches and result in opposite outcomes. Given the small size of a bench, a judge’s philosophy and discretion have far greater influence than in a large en banc court where judges may consult and reach consensus.
Variation is amplified by the Court’s power to tailor non-traditional remedies and dilute standing through public-interest litigation.6566 The Court has awarded ‘constitutional tort’ compensation, overseen policy on pollution and the environment, disaster relief, child labour, and sexual harassment,67 directed Parliament to pass laws, made interim laws, and ordered investigations. Rights-balancing is largely judge-dependent. When a single judge already wields wide institutional discretion, the risks of unconstrained reasoning are disproportionately high — it would incentivize bad judges to enforce personal, policy, and political preferences, unconstrained by precedent, because doctrine allows them to.
The standard of judicial reasoning must be one that “could convince someone not already convinced of the outcome.”68 When judges do not provide practical reasoning based on the facts, their judgments are impressionistic, arbitrary, and based on customary standards and hierarchies. Such outcomes erode legal certainty, the rule of law, and public faith in judicial reasoning.69
The need to resolve the doctrinal gap
Unstructured balancing risks long-term harm. First, given the thick formulation of socio-economic rights and the incremental expansion of positive rights, many more such conflicts are bound to arise; the absence of a consistent doctrine harms transparency and predictability and may produce unfairness. Second, constitutional adjudication in India is often multi-party; the Court must reach a balanced solution across stakeholders, and failure to find a consistent doctrine causes disproportionate harm to certain sections and a loss of public faith.
Third, if judges invoke rights at the drop of a hat without justifying them factually, the right that loses out is weakened — because once a competing right is implicated, the threshold for justifying infringement is much lower. Discretion without discipline risks the politicization of the Court. Finally, as regulation grows more complex, conflicts will involve a wider range of rights of diverse parties; a structured process of adjudication offers the heuristic tools to wade through them.
An analytical framework for rights specification
When courts broadly articulate rights and balance them through generalized, principle-based reasoning, they increase the likelihood of discretionary outcomes: the state gains a wide margin to defend laws as instruments to enforce rights, and courts accept such claims on a remote connection to a broad right. One way to avoid this overbreadth is to identify the rights in dispute narrowly — first identifying a right and a corresponding narrow state duty.
According to Hohfeld’s analytical framework, every right has a corresponding duty:70 if P has a right to do X, then Q has a corresponding duty to let P do X. That duty gives P a claim against Q — a claim right. A claim right can be a purely negative duty not to impede P, or a positive requirement to enable P to do X.71 In the constitutional context, rights are generally enforceable against the state, which bears the corresponding duty. It is the court’s interpretative function to determine whether the state interests underlying a law are, in fact, positive constitutional duties.72
On a constitutional challenge, three broad outcomes are possible:
- 1The rights-holder does not have the claimed constitutional right against the state — the challenge fails.
- 2The claim is a constitutional right imposing a duty on the state, but the interest underlying the law is not a constitutional duty — the law is unconstitutional, because rights trump ordinary state interests.
- 3The rights-holder has a constitutional right against the state and the state has a constitutional duty to further the interest underlying the law — this is a true conflict of rights.
To illustrate, take the facts of Amit Sahni v. Commissioner of Police,73 where the Court articulated a conflict between the right to protest of some and the right to free movement of others. The right to protest imposes a negative duty on the state not to interfere (D1). The right to free movement imposes a negative duty not to interfere with movement (D2). Both are negative and do not conflict, because a state interest in protest-free roads is not itself a constitutional duty. One might argue, however, that the right to free movement includes a derivative positive duty — that the state create free highways (D2.1). If so, D1 and D2.1 conflict: the state can enforce one or the other.
Such a conflict is resolved by determining a textual or doctrinal order of precedence — a lexical priority — which involves moral reasoning. Competing duties must be gerrymandered as far as possible without losing their core, so that the conflict is minimized and the rights “fit like puzzles.” The Court must ask whether a duty is a core duty or a derivative one; derivative duties are secondary. In Amit Sahni, the duty to facilitate movement (D2.1) is a derivative positive duty arising from a negative right — and when it conflicts with a core duty (D1), the core duty should prevail.
Finally, some fundamental rights carry internal restrictions. Free speech may be reasonably restricted in the interest of “the sovereignty and integrity of India, the security of the State, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence” (Article 19(2)); the right to life is subject to a procedure established by law (Article 21). It is the Court’s function, on judicial review, to determine whether the conflict is resolvable at this stage — before moving to resolve conflicting rights.
Conclusion
The Indian Constitution recognizes a vast network of competing positive and negative rights, and they frequently battle out before the Court. A close reading of a few paradigmatic rights-conflict cases shows that, eager to set constitutional values against each other, the Court has often glossed over the granular details — and had it paid greater attention to context, it would have realized that very often the conflict it presumes does not in fact exist. This gap exists partly because the Court follows no structure or methodology for balancing rights.
Even though the Court has, in the last decade, adopted the proportionality framework and cited it frequently, it is one thing to cite international models and another to apply them thoroughly. The Court must pay far greater attention to the process of adjudicating rights. This is the compelling need of the hour.74
“While proportionality can do much regarding unjust laws, it can ultimately do very little about poor judging.”Madhav Khosla