There is an old principle in law – ubi jus ibi remedium, which in Latin means, “where there is a right, there must be a remedy.” It is not a technicality. It is the foundation. Without enforcement, rights are not rights at all; they are aspirations dressed in constitutional language.
India’s legal framework was built with this in mind. Part III of the Constitution guarantees fundamental rights; Articles 32 and 226 exist specifically to enforce them. Dr B R Ambedkar called Article 32 the “heart and soul” of the Constitution, and he was precise in that choice of words. A right without recourse is not a protection – it is a promise without consequence. The Supreme Court has echoed this consistently. In State of Madras v V.G. Row, it held that constitutional rights must be real and enforceable, not merely theoretical. In Bandhua Mukti Morcha v Union of India, the Court went further, establishing that the State carries a positive obligation to make rights realisable, particularly for those least able to claim them unaided.
The jurisprudence has, by any measure, grown considerably. Maneka Gandhi v Union of India transformed Article 21, requiring any procedure restricting personal liberty to meet a standard of fundamental fairness – not mere legality. Justice K.S. Puttaswamy (Retd.) v Union of India recognised privacy as a constitutionally protected dimension of dignity and autonomy. These are genuine advances, reflecting a judiciary willing to read the Constitution as a living document. The problem is that the infrastructure to make these rights real has not grown with them. If anything, it is failing.
Indian courts are carrying a caseload that staggers. Cases extend for years; some for decades. The Supreme Court recognised in Hussainara Khatoon v State of Bihar that speedy trial is itself a right under Article 21 – a recognition that did nothing to resolve the problem. That judgment is decades old, and delay remains endemic throughout the system. For individuals without financial resources or legal literacy, procedural complexity functions as a deterrent long before any substantive issue is even raised. Human rights commissions and regulatory authorities exist to supplement the formal courts, but most lack binding powers. Their recommendations are advisory. In practice, they are politely ignorable.
The failure extends to judicial victories. Vishaka v State of Rajasthan, which produced landmark guidelines on workplace sexual harassment, is among the most celebrated examples of progressive constitutional litigation. It is equally an example of a judgment whose practical effects took years to materialise – not because the law was wrong, but because the institutions responsible for implementing it simply did not move. Much of the Public Interest Litigation docket tells the same story: directives issued, governments non-compliant, follow-up inadequate, the same matters returning to court in successive rounds. Over time, this does something beyond delaying individual cases. It normalises the idea that court orders are aspirational – a suggestion rather than a command.
The cumulative damage is felt most acutely by those least equipped to absorb it. The undertrial prisoners in the Hussainara Khatoon Case had been confined longer than the maximum sentences for the offences of which they stood accused – held not by any finding against them, but by a system that had not processed their cases. Procedural safeguards designed to protect them had, through ordinary systemic failure, become the mechanism of their continued detention. Common Cause v Union of India documented the executive’s routine disregard for judicial directions; the Court understood that each instance of non-compliance weakens the authority of remedies as an institution. Anil Rai v State of Bihar addressed the damage done by delayed judgments: when delay becomes the expected norm, public confidence in the justice system erodes in ways that prove genuinely difficult to reverse. A remedy that arrives years after it was needed does not restore what was lost. It merely records it.
This is what Lon L Fuller had in mind when he argued that law loses its moral force when it consistently fails to function in practice. Upendra Baxi’s description of a “crisis of the Indian legal system” names the condition precisely: not the absence of rights, but the normalisation of their non-enforcement – a slow shift from outrage to resignation that gradually removes the pressure required to drive any reform at all.
India has invested substantially in developing its constitutional jurisprudence, and that work is not without value. But doctrinal sophistication is not the same as accessible justice. The true test of a legal system is not the quality of its judgments alone, it is whether those judgments reach the people for whom they were intended, in time to matter.
That is the harder project. It demands institutions that treat implementation as seriously as adjudication, courts adequately resourced to function without chronic backlogs, and a genuine rather than formal commitment to making remedies accessible to those who need them most. Until that project is undertaken seriously, the expansion of rights without the reform of enforcement is not progress. It is its appearance.
The Author is a 1st Year Law Student at School of Law, University of Kashmir.
Noorbagh, Srinagar.
