Understanding the Criminal Law and Fundamental Rights: And its Nature, Purpose, and Constitutional Foundations in India

There is always a natural tug-of-war between two powerful forces of nature in any civilized society. On one side there is Criminal Law (e.g. the Bharatiya Nyaya Sanhita earlier IPC) which allows the State to punish people, through the instrument and equipment of the State for the sake of the maintenance of law and order. On the other side, we have there is the Fundamental Rights, guaranteed in Part III of the Constitution that protect the individual from the might of State.

If we think a situation where Criminal Law is too heavy the state will devolve to a police state where innocent people will be stopped and perhaps incarcerated for no reason. And if Fundamental Rights are too heavy then criminals might use “liberty” as an umbrella to escape punishment creating an anarchic society. Criminal law and Fundamental Rights are on both ends of India’s constitutional framework, through the law the state can punish offenders and with Fundamental rights citizens can rely on the Constitution to protect them from the state’s excesses. The state has to and need to maintain law and order but cannot take away the basic dignity and liberty guaranteed by the Constitution.

Criminal law and fundamental rights are not enemies but they are in constant tension. The same laws established to punish murderers, terrorists, or rapists, can also be utilized to suppress dissenters, persecute minorities or ruin lives using illegal confinement or false encounters. The Constitution gives the State power to restrict rights but only by “reasonable restrictions” and “procedure established by law.” The last 75 years the Supreme Court has struggled with what “reasonable” really means and what type of procedure satisfies human dignity.

This article going to examines the precarious balance. It considers Constitution of India as a protective umbrella. In India if we take example, even a person accused of crime has fundamental rights that police and courts must uphold. The rule in India is that a person is innocent until proven guilty and that a crime must be established. So even a person accused of a crime is a human being and has rights. 

This article also examines some of the key areas of tension between fundamental rights and criminal law provisions, the ways the Supreme Court has (sometimes unsuccessfully) dealt with those tensions, and where we are situated in 2025.

UNDERSTANDING THE RELATIONSHIP BETWEEN CRIMINAL LAW AND FUNDAMENTAL RIGHTS

Criminal law give the State wide powers to arrest, to detain, to investigate, to prosecute, and to punish. But here the Constitution set limits on these powers to ensure that governance remains fair and just.

1. Nature & Purpose of Criminal Law and Constitutional Foundations of Fundamental Rights 

 In the India’s constitutional democracy criminal law and fundamental rights operate as two foundational limbs, yet now they serve different objectives that inevitably create friction between them. Criminal law empowers or allow the State to maintain order, to deter acts of wrongdoing, and to penalize transgressors using measures such as arrest, investigation, trial and imprisonment. That require the use of coercive power, and without such power, societies would have difficulty controlling crime or protecting the vulnerable. 

Now fundamental rights provide safeguard for persons against excesses and wrongful use of that power. Articles 14, 19, 20, 21 and 22 guarantee in varying degrees that all persons accused or voluntarily interacting with the criminal justice process have dignity, fairness and justice. So, the interaction between criminal law and fundamental rights begins with a central characteristic of the constitution that the State is allowed to limit liberty in the name of order, but it must be lawful, reasonable and proportionate.

2. Points of Conflict Between Criminal Process and Rights

As both realms that is criminal law and fundamental rights are function that interact with the same persons, tensions arise frequently. Many powers available to the State under criminal law conflict with personal liberty. For example, police can arrest a person without a warrant, conduct a search, or interrogate a suspect, or apply preventive measures in the name of security. Also preventive detention laws, surveillance structures or anti-terror laws either separately or in conjunction with laws restricting assemblies test the authority of Articles 19 and 21. Criminal provisions (like sedition, criminal defamation, etc.) related to obscenity and public order can sometimes test the freedom of speech. Also even during trials, refusal of bail, excessive pretrial detention, custodial violence, or excessive passive investigation times can impede the equal and fair process enshrined in the Constitution. So it is clear that there is friction between State power and individual liberty, and it should not be regarded as accidental, but has been purposely placed in the very architecture of democratic governing.

 CONSTITUTIONAL SAFEGUARDS AGAINST CRIMINAL LAW

The Constitution of India does not confer unbounded power on the State for it acknowledges the possibility of the police and other authorities acting wrongly or abusing their power. This is why strong safeguards are created for individuals in Part III of Constitution especially when a person comes into contact with the criminal justice system. This Articles 20, 21, and 22 operate as protective measures together to ensure that when the State investigates or punishes someone also it must do so in accordance with the law and human dignity. These protections prevents the government from making decisions in an arbitrary fashion and help to preserve the balance of benefits to society by maintaining public order and the freedoms of the individual.

Article 20 contain three important safeguards: (i) a person cannot be punished for an act that was not a crime at the time it occurred (no ex-post facto law), (ii) a person cannot be tried twice for the same crime (double jeopardy), and (iii) an accused person cannot be compelled to testify against themselves (the right against self-incrimination). These protections helps to guarantees that the State does not change laws to punish a person unfairly and does not treat a person as if they are guilty, and also does not coerce people into confessing their guilt under pressure or by torture. Article 21 takes the framework a step further and forbids the willful deprivation of life or liberty of a person without a fair, just and reasonable procedure of law by the State. Supreme Court has found that the protections in Article 21 extend to many significant procedural life and liberty rights, including speedy trial, free legal aid, humane treatment in custodial settings, and no unnecessary handcuffing, and given this, Article 21 is now the heart of constitutional life and liberty justice.

Now Article 22 provides important protections at the time of arrest when individuals are most vulnerable. It say that the police need to inform the arrested person of the grounds of arrest also provide access to a lawyer and have to bring the person before a Magistrate within 24 hours. These safeguards and protection prevent illegal detention, reduce the chances of police abuse, and make sure that the criminal process begins under judicial supervision rather than unchecked police control. Together, Articles 20, 21, and 22 make sure that criminal law work within constitutional boundaries, protecting both society and individual rights.

 MAJOR AREAS OF CONFLICT BETWEEN CRIMINAL LAW AND FUNDAMENTAL RIGHTS

In India many of major points of conflict between the state’s criminal law and citizens fundamental rights arise from the state’s use of preventive detention (National Security Act, Unlawful Activities Prevention Act, Pit Act) its use of sedition laws, the alacrity of its use of police force, how states surveil their citizens (using laws like the NSA and UAPA), and the use of capital punishment. Laws of preventive detention that allows the state to imprison people without trial even in times of normalcy which is one reason India (along with Sri Lanka) is one of the last democracies in the world that still has preventive detention law. A Supreme Court judgement has noted that it will control the misuse of preventive detention law, by phrasing the question as whether an authority has applied its mind when nesting these laws, in effect allowing the authorities discretion. But in practice, most detention orders are bluntly vague or essentially copy pasted from a template in an arbitrary fashion, breaching Articles 21 and 22 of the Constitution. The Bhima Koregaon case against civic activists say how a preventive detention can become punishment in its own right, even without a conviction and without a charge being laid. Similar tensions evident when we consider sedition laws. When Kedar Nath Singh (1962) limited the parameters of the sedition law to sit within a "violence" or "incitement induced violence" framework, there were still numerous cases filed by police across India for cartoons, slogans, and social media posts. In 2022, the Supreme Court stop new prosecutions under sedition law, but in replacement brought forth a new Section 152 in the Bharatiya Nyaya Sanhita that look similar to the original sedition law. As of 2025, the constitutional challenge to Section 152 is still pending before a Constitution Bench of the Supreme Court, which in itself exemplifies the fear shared by ruling governments of all political parties that remains the use of a law, that is arguably the most powerful tool of surveillance and social control.

Other significant tensions  and conflicts are custodial violence, fake encounters, surveillance, and the death penalty. In history Just as we enter the third decade of the new century India continues to experience custodial deaths of more than a hundred yearly, despite the guidelines laid down in DK Basu. Encounter killings occur, in UP and Telangana, despite the Supreme Court holding that extrajudicial killings amount to murder - unless a very narrow range of thresholds are met. At the same time, the right to privacy, as formally recognised in Puttaswamy (2017), experiences State interference through various forms of surveillance. Phone tapping, facial recognition, the use of Pegasus spyware, and wide exemptions to the Data Protection Act 2023, show how law enforcement and investigative powers can easily infringe on digital privacy laws. Lastly, the death penalty remains one of the greatest constitutional contradictions in India. While Bachan Singh limited it to rarest of rare cases formally, trial courts over-use the punishment and often fail to consider mitigating factors. Project 39A reports and courts show normatively deep social, economic and caste biases in sentencing death penalties, with a majority of the more than 560 people on death row in 2025, now showing the struggles to balance punishment, dignity, and the constitutional elements of justice.

 JUDICIAL RESPONSE: EVOLUTION OF JUDICIAL APPROACH

The transition in the judicial attitude regarding criminal law and fundamental rights in India can be traced in a manner of speaking from A.K. Gopalan (1950) to Maneka Gandhi (1978). In Gopalan, the Supreme Court engaged in a narrow "silo approach," treating Articles 14, 19 and 21 as separate compartments without any intrusion, overlap or connection between them. In other words, so long as the preventive detention law satisfied Article 22, it was valid. With Maneka Gandhi, everything changed. The Court held that Articles 14, 19 and 21 are interrelated, and any "procedure," 'law' to be accurate, under Article 21 must comply with the requirements of fairness, justness & reasonableness—not harsh or arbitrary. The judgment fundamentally transformed Indian criminal jurisprudence. From thereon every arrest, detention, investigation, trial and punishment must pass the constitutional test of non-arbitrariness.

Following the case Maneka Gandhi, Article 21 developed into the bastion of Indian criminal rights creating protections that are often viewed as essential today. Courts gaven substance to the right to know the grounds for arrest by established that bail should be the rule and jail should be the exception, and outlined the right to free legal aid for individuals who cannot hire lawyers. The courts held that under-trial prisonerswere to be treated with dignity, were not to be mixed with convicts, and were only to be handcuffed when necessary. Refunds were awarded forillegal detentions, and the right to a speedy trial allowed thousands of prisoners who languished for years in jail with no progress in their cases. These iterations of Article 21 showit has moved from safeguarding life and liberty, to a much more expansive guarantee of dignity and humane treatment.

The judiciary has invalidated or revisited several criminal provisions that were in conflict with fundamental rights over time or many time. 

• On Shreya Singhal (2015), the Supreme Court struck down Section 66A of the IT Act; 
• in Selvi (2010), the Supreme Court barred involuntary narco-analysis and brain-mapping; 
• in Navtej Johar (2018), the Supreme Court decriminalised homosexuality; 
• in Joseph Shine (2018), the Supreme Court guillotined the adultery law; 
• in Anuradha Bhasin (2020), the Supreme Court formulated guidelines for internet shutdowns; 
• in Kaushal Kishor (2023), the Supreme Court invoked limits on hate speech by public officials.

 But recent developments produced mixed results. On one hand, privacy has been recognised as fundamental and many out dated criminal provisions have been addressed. On another, custodial violence does not appear to be well documented the capital sentences seem to have increased, mass surveillance persists, and the new criminal provisions addedin 2023 don’t appear to limit police powers. So overall while the Court has found its footing on protecting core components of free speech and personal liberty, theCourts appear to remain circumspect in national security and custodial issue.

CONCLUSION

The relationship between criminal law and fundamental rights exhibits a constant sense of tension and compromise. Criminal law empowers the State to impose order, whilst fundamental rights seek to limit that power. Over the years, the courts have developed a robust rights-based approach that has generalized Article 21 into fairness, dignity, right to privacy, and humane treatment of individuals. 

At the same time, there are obstacles, such as arbitrary detention, overcrowded prisons, abuse of preventive detention laws, and increased surveillance. Increased constitutional protections for a criminal justice system that acknowledges, respects and defends fundamental rights, better police accountability, legal literacy and expediency of trials are all critical. The constitutional commitment is simple: individuals may be punished for crime but not at the expense of liberty.

REFERENCES

• M.P. Jain, Indian Constitutional Law (20th ed. 2023).
• D.D. Basu, Introduction to the Constitution of India (26th ed. 2023).
• Upendra Baxi, Human Rights in Criminal Justice (1982), Journal Articles.
• Project 39A, The Constitution and the Criminal Justice System(s) of India (July 15, 2021), https://p39ablog.com/2021/07/the-constitution-and-the-criminal-justice-systems-of-india/
• Lokanath Maharana, The Role of Fundamental Rights in India's Criminal Justice System: Challenges and the Path Forwar IJRPR Vol. 5, Issue 11 (2021), https://ijrpr.com/uploads/V5ISSUE11/IJRPR35751.pdf
• Constitutional Law of India – Chapter 8: Right to Freedom, Manupatra Student Module, http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-8.htm
• The Constitution of India (Part III—Fundamental Rights), § 12–35, http://www.mea.gov.in/images/pdf1/part3.pdf
• D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
• Maneka Gandhi v. Union of India, (1978) 1 SCC 248
• A.K. Gopalan v. State of Madras, AIR 1950 SC 27
• Shreya Singhal v. Union of India, (2015) 5 SCC 1
• Selvi v. State of Karnataka, (2010) 7 SCC 263
• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
• Manoj v. State of M.P., 2022 SCC OnLine SC 1665