Author: Naman Malik, LLM University of Hertfordshire,Hatfield, UK
TO THE POINT
This article examines two of the world’s most significant rights-adjudicating institutions: the European Court of Human Rights and the Supreme Court of India. It analyses how each protects fundamental rights within its respective legal framework. Although both courts address violations of individual liberties, they operate through fundamentally different constitutional frameworks, employ distinct interpretive approaches and possess varying enforcement mechanisms while facing different contemporary challenges.
The analysis centres on judicial authority and documented international developments, providing a substantive comparison of how rights protection operates within Europe’s supranational legal system compared to India’s constitutional democracy. By examining these institutional differences, the article reveals how constitutional structure, political context and legal tradition shape the practical effectiveness of human rights enforcement across different jurisdictional models.
ABSTRACT
The European Court of Human Rights enforces the European Convention on Human Rights across 46 states. It bases its external oversight of state behaviour on ideas like proportionality and the margin of appreciation. Its rulings are legally binding, but they must be politically implemented by the Committee of Ministers.
The Supreme Court of India, by contrast, exercises constitutionally entrenched judicial review under Articles 32 and 136, permitting direct, domestic enforcement of basic rights and enhancement of constitutional safeguards by purposive interpretation.
This essay compares the two courts across five dimensions: (1) constitutional underpinnings, (2) interpretive technique, (3) positive obligations, (4) remedial mechanisms, and (5) modern rights challenges. It includes major decisions—including Handyside, Tyrer, Osman, A and Others, Maneka Gandhi, Kesavananda Bharati, Puttaswamy, and Navtej Johar— alongside practical advancements like algorithmic policing, mass surveillance, climate litigation, and the reduction of public space. The contrast shows that New Delhi operates as a constitutional court with broad authority, but Strasbourg offers global oversight. The future of rights protection in their respective countries will be determined by the changing challenges that both must contend with.
USE OF LEGAL JARGON
Living Instrument Doctrine
Principle from Tyrer v UK requiring the ECtHR to interpret the Convention in line with contemporary social, moral, and technological developments, ensuring that rights remain adaptable and relevant.
Margin of Appreciation
A doctrine that allows states a controlled degree of discretion when limiting rights. It reflects the ECtHR’s recognition that domestic authorities may sometimes be better placed to assess local needs, provided the restriction stays proportionate.
Proportionality Review
A structured four-stage test used to evaluate whether a limitation on rights serves a legitimate aim, is rationally connected to that aim, uses the least intrusive means, and maintains a fair balance.
In Puttaswamy v Union of India, the Supreme Court of India adopted this European model when recognising privacy as a fundamental right and holding that any interference with it must satisfy proportionality.
Substantive Due Process
An Indian doctrine developed after Maneka Gandhi, requiring that any state action restricting life or liberty be not only procedurally correct but also fair, reasonable, and non-arbitrary in substance.
Basic Structure Doctrine
Established in Kesavananda Bharati, it prevents Parliament from amending or destroying essential constitutional features such as judicial review, separation of powers, and fundamental rights.
Positive Obligations
A principle in ECtHR jurisprudence requiring states to take active steps to protect individuals from harm. In Osman v UK, this extended to safeguarding persons from foreseeable threats to life.
Continuing Mandamus
A remedial device used by the Supreme Court of India in Public Interest Litigation to retain ongoing supervision over government compliance until the violation is fully remedied.
THE PROOF
1. Constitutional and Institutional Foundations
European Court of Human Rights
The ECtHR derives jurisdiction from the European Convention on Human Rights (1950). Once domestic remedies have been exhausted, individuals may petition under Article 34. Judgements are enforceable under Article 46, although execution depends on political control by the Committee of Ministers. The ECtHR’s mission is supervisory: it does not replace national courts but evaluates whether states have violated minimum Convention criteria. Its power is greatest in areas like torture, incarceration, privacy, and freedom of expression that need for harmonised European protection.Supreme Court of India
The Supreme Court’s authority originates from Part III of the Constitution of India, rendering basic rights justiciable and enforceable. Individuals may seek remedies directly from the Court under Article 32, an unmatched access mechanism in Europe. The Court can strike down laws, invalidate executive actions, and give binding instructions. Its rulings are final under Article 141. The judiciary is positioned at the core of India’s rights-protection system because to this structural arrangement.
2. Interpretive Methodologies
ECtHR
The Court evaluates state intervention using proportionality and the living instrument doctrine. In Handyside v UK, it upheld restrictions on expression while underlining that freedom of expression applies to ideas that “offend, shock or disturb.” Tyrer v UK confirmed that the Convention must reflect “present-day conditions.”
However, the ECtHR must respect national variety, adopting the margin of appreciation where domestic authorities are best suited to determine societal requirements. This explains why rights such as privacy or family life may range slightly in scope across jurisdictions.
Supreme Court of India
The SCI utilises a purposeful and expansionist interpretive method. Article 21 was changed by Maneka Gandhi from a limited procedural assurance to a comprehensive list of substantive rights. Subsequent rulings, including Puttaswamy, acknowledged privacy as essential to dignity.
As demonstrated in Navtej Johar, which invalidated Section 377 IPC, the Court frequently relies on constitutional morality, a criteria that prioritises equality and dignity over societal majoritarianism. The Court has constitutionalised contemporary liberties, such as identity autonomy and digital privacy, by interpreting rights in a dynamic way.
3. Positive Obligations and Socio-Economic Dimensions
ECtHR
The Court imposes affirmative responsibilities where appropriate to defend Convention rights. According to the ruling in Osman v. UK, Article 2 mandates that nations take precautions against known risks to human life. Airey v Ireland noted that genuine access to justice may require state help. These requirements remain restricted and essentially procedural, reflecting the Convention’s civil-political orientation.Supreme Court of India
India’s Supreme Court has integrated socio-economic issues into Article 21, introducing enforceable rights to housing (Olga Tellis), education (Unnikrishnan), health (Paschim Banga), and environmental protection (MC Mehta).
Unlike the ECtHR, which cannot expand treaty wording, the SCI translates Directive Principles into enforceable rights. This gives India’s jurisprudence a broader social-justice character.
4. Remedial Power and Enforcement
ECtHR
In systemic situations, such as Broniowski v. Poland, the ECtHR may make structural recommendations in addition to granting just satisfaction under Article 41. It cannot, however, overturn domestic legislation, and state-by-state application differs. Enforcement depends on political cooperation, generating diversity in compliance, particularly in regimes confronting rule-of-law backsliding.
Supreme Court of India
The restorative powers of the SCI are more potent and quick. Articles 32 and 142 provide it the authority to: • overturn laws; • impose structural reforms (such as those pertaining to the environment, law enforcement, and prisons); • direct administrative action; and • keep an eye on compliance by ongoing mandamus.
This makes India’s system judicially enforceable, unlike Strasbourg’s concept of supervisory enforcement.
5. Contemporary Challenges
Surveillance and Digital Rights
Algorithmic policing, data retention, and mass spying are issues that both governments must deal with.
• The European Court of Human Rights examines mass interception policies in cases like Big Brother Watch v. UK.
• India: Puttaswamy laid the constitutional groundwork for data privacy, but Aadhaar-linked surveillance and Pegasus spyware problems illustrate gaps between doctrine and practice.
Climate Litigation
• ECtHR: transnational accountability is sought in young climate lawsuits such as Agostinho v. Portugal & Others.
• India: environmental jurisprudence combines climate issues with Article 21 protections.
LGBTQ+ Rights
• ECtHR: Fedotova v. Russia mandated that same-sex partnerships be recognised.
• Navtej Johar decriminalised homosexuality in India, but the issue of marriage rights is still unsolved.
Democratic Backsliding
States that undermine judicial independence are increasingly being confronted by the ECtHR.
India confronts concerns of executive power, lengthy pre-trial detention, and decreasing civic space.
FAQs
Q1. Why compare these two courts?
Because they represent the most developed supranational and constitutional rights-protection systems, offering a unique contrast between external supervision and internal constitutional enforcement.
Q2. Does the ECtHR override national courts?
No. It provides external review after domestic remedies are exhausted. Enforcement relies on political compliance.
Q3. Does the Supreme Court of India interpret socio-economic rights?
Yes. Through Article 21, it converts basic needs—health, shelter, environment—into enforceable rights.
Q4. Which court uses proportionality more rigorously?
The ECtHR applies structured proportionality consistently; India adopted proportionality in later jurisprudence, especially after Puttaswamy.
Q5. Which system offers stronger remedies?
India’s Supreme Court, because its decisions have direct legal force, while ECtHR judgments depend on state cooperation.
