This post shall succinctly examine the efficacy of the Fundamental Rights in light of some of the inbuilt safeguard mechanisms in the Indian constitution to protect them from State assault, reasonable restrictions, certain rules of interpretations, special laws and the active and passive roles of the judiciary in upholding their sanctity.
Fundamental Rights are the most distinguishing feature of any constitution which is rights-oriented and is based on the values of a liberal-welfare State. In India such, rights are enshrined in Part III of its constitution and are enforceable only against State or its instrumentalities as per Article 12. These rights in some way are reflective of the much higher principles of the UDHR (Universal Declaration of Human Rights) sans which human existence would be akin to dumb driven cattle.
Since such rights (in varying forms and degrees) have been provided for in the respective grundnorms of other countries also, many Indian constitutional scholars point out that certain inbuilt mechanisms to safeguard, entrench and protect these provisions from infringement by the State is what sets apart the Indian constitution from the rest.
For instance, Article 13 of the Indian constitution provides that the State shall not make any law which takes away or abridges the Fundamental Rights and that any law made in their contravention shall be void to the extent of such contravention.
Then Article 32 and 226 empower the common man to directly approach the Supreme Court and High Courts respectively for the enforcement of these rights. And these constitutional courts can issue appropriate directions, orders or writs (like habeas corpus, mandamus, prohibition, quo warranto, and certiorari) for the enforcement of any of the Fundamental Rights mentioned in Part III of the Constitution. Dr. Ambedkar famously referred Article 32 as the Heart and Soul of the constitution.
What is noteworthy is that despite these appealing safeguards, fundamental rights in India have been subjected to all kinds of assaults & abuses by the State right from the enactment of the Indian constitution in 1950.
The freedom of speech and expression under Article 19 has often faced the heat the Sedition Law often invoked by the Governments in power against their political adversaries and to curb dissent. Quite surprisingly Indian leaders choose to keep it in the Statue book despite its serious propensity of misuse and despite that they had also been repeatedly harassed under this provision during the colonial rule. Pandit Jawaharlal even got amended the Constitution to ensure that Sedition law survives the constitutionality test in the post-independent India.
The courts, however, did some commendable job in at least reading down the provision if not striking it completely in various cases, especially the Kedar Nath v State of Bihar 1962 wherein it restricted its application to only those acts ‘involving intention or tendency to create disorder or disturbance of law and order or incitement to violence’. It also opined that the provision should not be invoked unless there is clear and present danger of violence.
Apart from this, there exist a long list of gross violations of fundamental rights by the State or its instrumentalities. Among other things, they include human rights abuses, custodial tortures, denial of free and fair hearing and extra-judicial killings, etc
Courts have given mixed and paradoxical responses to such violations. Sometimes they have adopted an hyper-activist role in protecting the fundamental rights and sometimes they have completely shirked their responsibilities even when there have been clear cases of transgression. The activist role of the Supreme Court is reflected in cases like Ram Nandan v State 1959; Maneka Gandhi v Union of India 1978; Bhim Singh v J&K 1885; Nilabati Behera v State of Orissa 1993; Shreya Singhal v UOI AIR 2015, etc
Cases, where the Supreme Court turned a blind eye to the violations, include AK Gopalan v State of Madras 1950 and ADM Jabalpur v Shivkant Shukla 1976, etc. The latter is infamously known as the darkest moment in the history of Supreme Court wherein it controversially held that in view of the Presidential Order Article 359 (Emergency Provisions), no person has any locus-standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ, order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides-factual or legal or is based on extraneous considerations.
The way the Supreme Court handled the Kashmir lockdown is also being termed by many as another shady moment in its history. It callously dismissed a series of petitions questioning the incarceration of political leaders, restrictions on movement and communication blockade imposed in Kashmir by simply holding that personal liberty will have to be balanced with national security. It’s strange given that just a few years ago it had re-affirmed the ‘Proportionality Test’ in Modern Dental College v State of MP 2016 wherein it had held quite authoritatively that the curbs on fundamental rights would be justified only if they are necessary to achieve the legitimate legislative aim and there are no other less restrictive measures/ways to achieve the same.
Also, if on one hand, the Constitution provides certain inbuilt mechanisms to protect the fundamental rights from unnecessary & arbitrary government encroachment then, on the other hand, it also provides a lot of leeways to the state to circumvent or get away with the violations.
For instance, Article 12 provides that fundamental rights are enforceable only against the state. Initially, the state was meant to be only the government or its agencies performing the government functions. So when other government entities like universities, statutory corporations, etc were accused of violating Fundamental Rights, State simply tried to evade responsibility by saying that such entities are not State within the meaning of Article 12.
For a long time, courts upheld such defenses by the State. In the University of Madras v Shantabai 1954, the court held that Madras University is a completely separate personality from the government as it is not exercising govt functions but a body corporate constituted by the government to promote education. Then in Rajasthan State Electricity Board v Mohan Lal 1967, SC excluded even the State Electricity Board from the purview of State by saying that it was set up to carry out commercial activities and not for exercising governmental functions.
It was only after the Emergency that the court expanded the scope of State by giving some liberal and purposive interpretations to the Article 12 in cases like RD Shetty v International Authority 1979 and Ajay Hasia v Khalid Mujib Sehravardi 1981. In the Ajay Hasia case, the Court gave 6 indicative factors for determining whether an entity is state or not. This was however narrowed down in some later cases like Pradeep Kumar Biswas v Indian Institute of Chemical Biology 2002 and Zee Telefilms v Union of India 2005. In the former, the court held that the entity should be financially, administratively and functionally under the control of the government while in the latter it held that mere regulatory control of the government over an entity under statute or otherwise would not make it a State for the purpose of Article 12.
Since all fundamental rights provided for in the Indian Constitution are also accompanied by Reasonable Restrictions, the State often tries to justify the restraints or curbs on Fundamental Rights on the basis of these reasonable restrictions especially in the cases of violations of Article 19 rights like freedoms of speech and expression, peaceful assembly, trade and occupation, etc. The most often invoked defenses in such cases are ‘in interests of the sovereignty and integrity of India, the security of the State, public order and incitement to the offense’ Most of the restrictions imposed in Kashmir for the last 3 months squarely fall in this category. And the way courts deals with such situation clearly indicate that the state interest takes precedence over the individual’s interests even though Fundamental Rights were conceived in a liberal spirit and seek to draw a reasonable balance between individual freedom and social control as per noted constitutional expert MP Jain.
Then there are certain other rules of interpretations (discussed below) that explicitly favor the state over and above the citizens or individual interest in the case State actions are challenged in the court of law for violating Fundamental Rights. This is despite the balance of power and resources disproportionally tilting in favour of the State as opposed to a hapless individual.
Reasonable restrictions have become a handy tool for the State to restrict the fundamental rights especially after the ruling of the Supreme Court in the landmark Kesavananda Bharti v State of Kerala 1973 case wherein it declared that amending power of the parliament does not extend to altering Basic Structure or ‘Essential Features’ of the Constitution-an open-ended catalogue of features that lies within the exclusive control of the Court.
The burden of Proof & the Presumption of Constitutionality
In simple terms this means that there is always a presumption in favor of the constitutionality of an enactment and the burden is upon him/her who attacks it to show that there has been a clear transgression of the constitutional principles. This has its roots in the doctrine of ‘Deference to the will of legislature’ which again is based on the presumption that the legislature concerned understands and correctly appreciates the need of its own people, and ordinarily shall not make laws in violation of the Fundamental Rights and even if does, it will be a permissible limitation.
This presumption places a very heavy burden on the common man and makes it very difficult if not impossible for her/him to prove the violation even though the court in some cases (like Bachhan Singh v State of Punjab) clarified that this rule is not a rigid inexorable rule applicable at all times and in all situations and that in certain grave situations the court may refuse to proceed on the basis of presumption of constitutionality and demand from the State justification of the legislation with a view to establishing that it is not arbitrary or discriminatory. In the Modern Dental College v State of MP 2016, the court bravely tried to reverse this burden by holding that once the petitioner has shown the infringement of the Fundamental Rights, the burden shifts on State to show that restrictions are reasonable, justified and proportionate. But in the light of the Kashmir experience, one can say that this holding has not been adhered to in letter and spirit.
Certain Special laws like AFSPA, PSA or the Public Safety Act (recently invoked in Kashmir at large scale), etc have draconian provisions like arrest without warrant, preventive detention, legal immunities to concerned officers for their actions, etc which allow the State to easily bypass the ‘Due Process Requirement‘. Mind that even though Indian constitution does not explicitly mention the due process requirement as such, Supreme Court in Maneka Gandhi v Union of India (1978) held that procedure provided for by way of primary legislation need to be fair, just and reasonable and not fanciful, oppressive or arbitrary and should be carefully designed to effectuate, not to subvert, the substantive right itself. But the way the Kashmir situation is being dealt with belies any claim of due process and fairness. 
The imposition of such laws on any area declared ‘disturbed’ by the central government renders all claims of fundamental rights almost futile. United Nations and several of its agencies have repeatedly asked the Indian government to repeal such laws like AFSPA and fulfill its Article 4 obligation under the ICCPR (International Covenant on Civil and Political Rights) but such requests have fallen on deaf ears of the government. Even though the Supreme Court has given warnings and cautions, the reality remains grim. As per data released by the home ministry in response to an RTI query, Jammu & Kashmir tops the list on rights abuses under AFSPA followed by Assam. 
Though the Indian Constitution provides a robust list of Fundamental Rights in its Part III, and also certain safeguards for their protection, there still is no guarantee that these Fundamental Rights will always be respected & honored by the Powerful State and its agencies & instrumentalities. Indian Supreme Court undoubtedly deserves praise for at least affirming and expanding the scope of many of the Fundamental Rights especially Article 21 even though such expansion or affirmation has bought little change at the ground level in absence of the substantive realization and enforcement of these rights at the social and personal level. History and experiences show that there have been all kinds of flagrant violations of these rights and the Apex Court could do little despite its activist and interventionist approach in several cases like Maneka Gandhi, Nilabati Bahera, Modern Dental College, etc. Notwithstanding some inbuilt safeguards (like Article 13, 32 and 226) in the Indian constitution for the protection of Fundamental Rights, existence of certain Special laws like AFSPA and their inherent draconian provisions can easily bypass all fundamental rights, procedural due process and fairness and the State can easily justify them as reasonable restrictions necessary in interests of the sovereignty and integrity of India, the security of the State, public order, etc as it did recently in brutal & disproportionate Kashmir lockdown. And the Supreme Court appears too shy and weak to intervene or invoke the Proportionality Test in such cases.