Constitutional Law.docx

CONSTITUTIONAL LAW ASSIGNMENT

Fundamental Rights & Directive Principles of State Policy Submitted By – Anas Mohsin B.A.LL.B 2nd Year (Regular)

SUBMITTED TO – DR. MOHAMMAD ASAD MALIK 4/11/2018

FUNDAMENTAL RIGHTS & DIRECTIVE PRINCIPLES OF STATE POLICY

INTRODUCTION Since both the Fundamental Rights and the Directive Principles were of common origin, it is clear that they both had the same objectives, namely to ensure the goal of a welfare society envisaged by the Preamble. If the Fundamental rights seek to achieve the goal by guaranteeing certain minimal rights to the individual as against State action, the Directives enjoin the State to ensure the welfare of the people collectively. Whenever the State makes laws, they should be made consistently with these principles with a view to establishment of an egalitarian society. The idea of embodying a code of Directive Principles has been borrowed by the framers of the Constitution from the Irish Constitution of 1937, which contains similar provisions. The preamble, the Directive Principles and the Fundamental Rights constitute the more important features of our Constitution. The Directive Principals of the State Policy enshrined in Part IV and the Fundamental Rights, guaranteed in Part III of the Constitution. Although Fundamental Rights and Directive Principles appear in the Constitution as district entities, it was the Assembly that separate them; the leaders of the freedom struggle had drawn no distinction between the positive and negative obligations of the states. Both types of rights had developed as a common demand, products of national and social revolutions, of their almost inseparable intertwining and of the character of Indian polity itself. The directive principles, though fundamental in the governance of the country, are not enforceable by any court in terms of the express provisions of Article 37 of the Constitution, while fundamental rights are enforceable by the Supreme Court and the High Court in terms of the express provisions of Article 32 and 226 of the Constitution. This doest not, however, mean or imply any dichotomy between the two. It social aspect can, however, be amended only by legislation to carry out the objectives of the directive principles of state policy.

The researcher, through this paper attempts to examine and explore the interrelationship between Fundamental Rights and the Directive Principles, enshrined in Part III and Part IV of the Constitution respectively. The first part of the paper will focus on the origin of the concept of Directive Principles and Fundamental Rights, and trace as to how inspite of them having a common origin, they were separated. The next part of the paper will deal with how the judiciary in India, has interpreted the relations between Part III and Part IV.

FUNDAMENTAL RIGHTS Fundamental Rights are the basic rights of the people and the charter of rights contained in Part III(Article 12 to 35) of Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law freedom of speech and expression, religious and cultural freedom and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. Violation of these rights result in punishments as prescribed in the Indian Penal Code or other special laws, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Though the rights conferred by the constitution other than fundamental rights are equally valid and their enforcement in case of violation shall be secured from the judiciary in a time consuming legal process. However, in case of fundamental rights violation, Supreme court of Indiacan be approached directly for ultimate justice per Article 32. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The six fundamental rights recognised by the Indian constitution are the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to constitutional remedies and right to privacy. The right to equality includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. The right to freedom includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation, right to life and liberty, protection in respect to conviction in offences and protection against arrest and detention in certain cases. The right against exploitation prohibits all forms of forced labour, child labour and trafficking of human beings. The right to freedom of religion includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes

and freedom from religious instructions in certain educational institutes. Cultural and educational rights preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. The right to constitutional remedies is present for enforcement of Fundamental Rights. The right to privacy is an intrinsic part of Article 21 that protects life and liberty of the citizens. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour (a crime). They also protect cultural and educational rights of religious and linguistic minorities by allowing them to preserve their languages and also establish and administer their own education institutions. They are covered in Part III (Articles 12 to 35) of Indian constitution.

DIRECTIVE PRINCIPLES OF STATE POLICY Part IV of Indian Constitution deals with Directive Principles of our State Policy (DPSP). The provisions contained in this Part cannot be enforced by any court, but these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The concept of Directive Principles of State Policy was borrowed from the Irish Constitution. While most of the Fundamental Rights are negative obligations on the state, DPSPs are positive obligations on the state, though not enforceable in a court of law. Article 36: Definition In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III. Article 37: Application of the principles contained in this Part The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 38: State to secure a social order for the promotion of the welfare of the people (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and

political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 39: Certain principles of policy to be followed by the State The State shall, in particular, direct its policy towards securing – (a) that the citizen, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 39A: Equal justice and free legal aid The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 40: Organisation of village panchayats The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of selfgovernment.

Article 41: Right to work, to education and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 42: Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43: Living wage, etc., for workers The State shall endeavor to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. Article 43A: Participation of workers in management of industries The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry. Article 44: Uniform civil code for the citizen The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 45: Provision for free and compulsory education for children The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health. Article 48: Organization of agriculture and animal husbandry The State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Article 48A: Protection and improvement of environment and safeguarding of forests and wildlife The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 49: Protection of monuments and places and objects of national importance It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. Article 50: Separation of judiciary from the executive The State shall take steps to separate the judiciary from the executive in the public services of the State. Article 51: Promotion of international peace and security The State shall endeavour to – (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and (d) encourage settlement of international disputes by arbitration.

ANALYSIS

The important question is where there is a conflict between the fundamental rights and directive principles, which should prevail? The Fundamental Rights are the rights of the individual citizens guaranteed by the Constitution. The directive principles lay down various tenets of a welfare state. The conflict arises when the State needs to implement a directive principle and it infringes/ abridges the fundamental rights of the citizens. The chapters on the fundamental rights & DPSP were added in order of part III and part IV of the constitution. The Fundamental rights are justifiable and guaranteed by the constitution. The Directive principles were directives to the state and government machinery. But they are not enforceable by the law. Part III and IV of the Constitution have been together described as “Conscience of the Constitution”. But the fundamental question in the context of the Constitutional relationship between Fundamental Rights and Directive Principles of the State Policy is; which of these parts would have primacy in the case of conflict between them? This question has all along been the central point of controversy between parliament and Supreme Court resulting not only in the enactment of some of the significant Constitutional amendments but also in the pronouncement of some of the locus classicus judicial decisions. The Constitution of India has issued two broad mandates to the parliament, the Legislature of the states and to all the institutions of the government. 1) Not to take away or abridges certain rights described as Fundamental Rights and 2) To apply certain principles described as Directive Principles of the State Policy. The Fundamental Rights are mostly of individual characters and are primarily meant to protect individuals against arbitrary state action. They are intended to foster the ideal of a political democracy and are meant to prevent the establishment of authoritarian rule. Several of these Fundamental Rights are ordinarily capable of enjoyment only by persons who are already free from want and necessity. They are little practicable value and have no meaning to the hungry and the homeless. The Constitution maker realised that mere adherence to the abstract democratic ideal was not enough and that if the Constitution was to survive it was necessary to secure to the people economic and social freedom in addition to political freedom. So the Directive Principles has to be enunciated in the Indian Constitution. The relationship between Directive Principles of state policy and the Fundamental Rights has been the subject matter of controversy since commencement of the Constitution. Soon after the commencement of the Constitution, the Indian Supreme Court was called upon to pronounce its view on the Constitutional relationship between the Fundamental Rights and Directive Principles. The relation between Fundamental Rights and Directive Principles came into the lime light because the former was made expressly justiciable

and the later was made expressly non-justiciable. The Supreme Court of India initially misunderstood the relation between Fundamental Rights and Directive Principles as they interpreted the law by words and not by its spirit. The resentence was accorded to Fundamental Rights as being enforceable over the Directive which is not enforceable stood in the way of implementing the latter. In judicial decisions and academic writings, Directive Principles appeared to be an unattached soul, standing aloof and preaching detachment in the traditional Indian fashion. Though they are fundamental in governance of the country and though it is enjoined on the State to apply these principles in adopting legislative measures, the legislature could with impunity ignore them, and the legislative immunity would be upheld by the courts as the principles were regarded as non-justiciable. An undue emphasis was laid on the un-enforceability of Directive Principles without taking into consideration their Fundamentalness and the Constitutional duty imposed upon the State to implement them. It gave rise to the belief that the Directive Principles were merely pious aspirations of little legal force and had to conform to and run subsidiary to Fundamental Rights. The Fundamental Rights were made enforceable whereas the Directive Principles were made non justiciable by the court of law. This difference in the nature of Fundamental Rights and Directive Principles resulted into conflict between them.

The questions which arose due to this were: 1) Are Directive Principles inferior to Fundamental Rights? 2) Are Directives fundamental parts of Indian Constitution? 3) Are Directive Principles of equal importance of Fundamental Rights?

JUDICIAL INTERPRETATION OF THE RELATION BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

The question of relationship between Directive Principles and Fundamental Rights has caused come difficulty and the judicial attitude has undergone a change over time. Conflict Between Fundamental Rights And Directive Principles Since the Directive Principles lay wide objectives of the State which cannot be legally enforced, while the Fundamental Rights are judicially enforceable, the question as to what happens if one is inconsistent with another, or one is in contravention of another naturally arises. For example a conflict can arise between the fundamental rights to carry on business guaranteed by Article 19(1)(g) and the Directive upon the State to safeguard and promote the interests of the workers under Article 39, 41-43. If one traces the way this problem has been approached by the judiciary it would show that while initially the judiciary adopted a strict legal position, and held that the Directive Principles are subservient to the Fundament Rights, while the later and more recent development has been towards avoidance of any conflict by applying the principles of reconciliation and harmonious construction. In several early cases, the Supreme Court took the literal interpretive approach to Article 37 and ruled that Directive Principles could not over-ride a Fundamental Right, and in case of a conflict between the two, the Fundamental Right would prevail over the Directive Principles. This point was settled by the Supreme Court in State of Madras v. Champakam Dorairajan , where the court invalidated an order which provided for communal reservation of seats for admission into a State educational institution, even though it was inspired by Article 46. According to the court, since Fundamental Rights were enforceable and the directive Principles were not, the laws to implement Directive Principles could not take away Fundamental Rights. The Directive Principles should run subsidiary and conform to the Fundamental Rights. In Venkataraman v. State of Madras, also the same point was reiterated, and said that the Madras Government’s order to give preference to the Harijans and backward classes was unconstitutional for it was discriminatory in relation to other backward classes. As a result of these judgments, where the orders were struck down as violative of Article 15(1) and 29(2), the Constitution (First Amendment) Act, 1951 was brought

about, 1951, which added clause 4 to Article 15, stating that nothing in Article 15(1) or 29(2) shall prevent the state from making any social provision for the advancement of socially and educationally backward classes. This made it clear that Directive Principles were no less important than Fundamental Rights, However, despite the amendment courts did not give much importance to the Directive Principles.

SOME IMPORTANT CASES

Champakam Dorairajan Case This conflict between Fundamental Rights and DPSP came to the Supreme Court for the first time in Champakam Dorairajan Case (1952). Smt Champakam Dorairajan was a woman from the State of Madras. In 1951, she was not admitted to a medical college because of a Communal G.O. (Government Order) which had provided caste based reservation in government jobs and college seats. This GO was passed in 1927 in the Madras Presidency.

Champakam Dorairajan Case was a first major verdict of the Supreme Court on the issue of Reservation. Champakam Dorairajan Case led to the First amendment of Indian Constitution.

This was the case, which when was in Supreme Court; the Lok Sabha was not formed. Lok Sabha was formed in 1952. The conflict was between article 16(2) from the chapter of Fundamental Rights and Article 46 of the Constitution. Article 16(2) says that : No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. And article 46 says: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. The Supreme Court held that Article 37 expressly says that the directive principles are not enforceable by court. Supreme Court mandated that the chapter on Fundamental rights in the constitution is sacrosanct and the directive principles have to conform to and run subsidiary to the chapter on Fundamental Rights. This means that Fundamental Rights were given superiority over the Directive principles. This continued for a decade and half and some other cases such as Qureshi v/s State of Bihar, Sajjan Singh V/s State of Rajasthan cases court confirmed this stand.

Golak Nath Case In 1967 came a very important case. This was Golak Nath vs. The State of Punjab (1967). In this case, for the first time a bench of 11 judges of the Supreme Court was formed. The court in this case laid down that Fundamental Rights cannot be abridged diluted to implement the directive principles. This decision forced the government to amend the constitution. By the 24th Amendment Act 1971, the Parliament amended Art. 13 and 368. This amendment made it clear that Parliament has the power to amend any part of the Constitution including Fundamental Rights and the word ‘law’ as used in Article 13 does not include a Constitutional Amendment Act.

Kesavanand Bharti Case In the Kesavananda Bharti Case the Supreme Court ruled that Parliament could amend any and every part of the Constitution including Fundamental Rights but it could not destroy the basic structure of the Constitution. To nullify the kesavanand Bharti Case, the 42nd Amendment further amended article 31 (C) and now it said that “No law giving effect to the policy on the ground” that is inconsistent with or takes away or abridges any of the rights conferred by article 14, 19 or 31.

Minerva Mills Case The parliament by 42nd amendment further widened the scope of the Fundamental Rights. However in the Minerva Mills v/s Union of India (1980) case, the Supreme Court struck down these provisions. On the ground that it changed the basic structure of the Constitution. The Supreme Court held that the Constitution exists on the balance of part III and Part IV. Giving absolute primacy to one over other will disturb the harmony of the Constitution. This took the Article 31(C) to its prior condition that ” a law would be protected by article 31C only if it has been made to implement the directive in article 39(b) and (c) and not any of the articles included in Part IV.

CONCLUSION

A member in the constituent assembly moved an amendment which sought to make the directive principles justifiable. However, this move was turned down on the fact that, there was no use in being carried out away by the sentiments. A court cannot enforce the directive principles and it is the strength of the public opinion which makes these provisions enforceable, because there are elections every five year and the public, if the DPSPs are not implemented can show the door to the government. It was a view of Jawahar Lal Nehru that where there was a conflict between the Fundamental Rights and Directive Principles the DPSP should prevail. However, where we look into the Judicial ‘nature’ of the above two, we see that Supreme Court should upheld the Fundamental Rights because they are guaranteed by the Constitution and justifiable. But the solution provided by the Supreme Court may be “Judicial” but not “practical” in all cases. It is the parliament which can reach beyond the “Judicial” solution. When a social conflict arises out of the conflicts of the Fundamental Rights and DPSP, the state should emerge as a “Torch bearer” because ultimately it is the superiority of the “Social Interest” over the “individual interest’. However, it is the duty of the Court to resolve a conflict with an eye on the constitution and another on the social harmony. After the Minerva Mills Case, The supreme court to the view that there is no conflict between the Fundamental Rights and the DPSP and they were complimentary of each other. There was no need to sacrifice one for the sake of the other. If there is a conflict it should be avoided as far as possible.

BIBLIOGRAPHY

BOOKS  CONSTITUTIONAL LAW – J. N. PANDEY  CONSTITUTIONAL LAW – D. D. BASU

WEBSITES    

www.scconline.com www.lawoctopus.com www.manupatra.com www.livelaw.com