Unenumerated Fundamental Rights-Does it really exist ?

A common misconception among the people is that their rights come from the Constitution. Even lawyers and judges are guilty of believing this, oftentimes suggesting that whether a right exists or not depends on whether it is listed in the Constitution. Law-enforcement agents read criminal suspects “their constitutional rights,” which leads some people to infer that the Constitution is the actual source of people’s rights. Suppose the Constitution had not been enacted. Would that mean that people would not have the rights that are enumerated in it? No, it would not mean that. The existence and protection of those rights did not depend on the Constitution.

Unenumerated Rights are Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. In the US, this is specifically protected by the 9th Amendment. The text of 9th Amendment is reproduced below:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Justice Arthur Goldberg put it in the famous privacy case of Griswold v. Connecticut, which involved a state statute prohibiting the use of contraceptives:

"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments....

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment....

Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."

The US position is comparable to Irish position. In the Irish Constitution,Article 40.3 expressly protects unenumerated fundamental rights. But a similar provision cannot be found in our Constitution. Our Apex Court in the case of PUCL v. Union of India(AIR 2003 SC 2363), has accepted the existence of unenumerated fundamental rights. This is surely a welcome step. It wold be apt to quote Justice K.K. Mathew's words from the decision in Kesavananda Bharati: "Fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of experience."