Clash of rights jurisprudence: the unintended consequence of transformative constitutionalism

The Indian judiciary, has recognised a long list of constitutional rights beyond those explicit in the Constitution. This expansion of rights over time has resulted in the constitutionalisation of a wide range of norms, and has significantly blurred the line between constitutional text and doctrine. While this expansive approach has sometimes been viewed favourably as a model of transformative constitutionalism in CCL, it comes with certain risks and unintended consequences. I focus on one such aspect – the SCI’s flawed approach in cases involving balancing or a clash of rights. I critique the way the SCI frames cases as involving a clash of rights even where there is no opposing right, the way it asserts the primacy of certain rights over others without explanation; and the Court’s justifications for choosing “public interest” as the meta-criteria for balancing. I then offer an alternative judicial framework for such cases which can also be useful for jurisdictions beyond India.