Lesson 2- Fundamental Rights and Directive Principles of State Policy Important Notes

 

Lesson 2- Fundamental Rights and Directive Principles of State Policy

Fundamental rights are fundamental in the Governance of the country. The inclusion of fundamental rights as a detailed scheme in the constitution shows the desire of the constitution makers to bestow Indians with basic Liberty of a free and a happy life.

 

Fundamental Rights

Granville Austin analyses Indian constitution as a social and revolutionary document. (Austin 1966) This philosophy is best manifested by Part III of the Indian constitution. These rights are guarantee against any form of encroachment by the Government of the day.

The Rights under Part III are considered Fundamental because of two important reasons.1) These rights are mentioned in the constitution as guarantees to the individual and groups. 2) These rights are justiciable i.e they are enforceable through courts of law. It also means that incase of violation of Fundamental rights, the individual can directly approach the highest of courts for redressal of his grievance.

The constitution guarantees six fundamental rights to citizens which are as follows.

 1. Right to Equality, (Article 14-18)

 2. Right to Freedom, (Article 19-22)

 3. Right against Exploitation, (Article 23-24)

 4. Right to freedom of Religion, (Article 25-28)

 5. Cultural and Educational Rights, (Article 29-30)

 6. Right to constitutional Remedies. (Article 32)

 

Fundamental Rights and Human Rights

Fundamental Rights are compared to human Rights. Human Rights are considered to be minimum necessary conditions for a dignified living which involve social, political and cultural rights. Since Fundamental Rights also provide security to individual at social, political and cultural aspects, it is also considered to be fundamental Human Rights.

 

Genesis of Fundamental Rights: - The inspiration for Fundamental rights in India could be traced to England’s Bill of Rights (1689), The United States (1791) and the French declaration of Rights of Man (1789).

In 1928, the Nehru Commission which consisted of representatives of Political Parties in India and headed by Motilal Nehru proposed a constitutional reform for India. They called for Dominion status of India and demanded election son the basis of adult suffrage.

In 1931, the Congress party adopted a resolution in the famous Karachi Session committing themselves to defense of civil rights. They also committed to abolishing untouchability and serfdom.

The resolution also committed for a minimum wage protecting socio-economic rights of ordinary man.

In 1944-45 a Sapru Committee supported the demand for Fundamental Rights. It was a Non-partisan committee consisting of intellectuals of which Tej Bahadur Sapru was its chairman. When India moved towards the making of their constitution, the constitution makers gave importance to the idea of Fundamental rights. The committee on Fundamental rights was headed by Sardar Patel and the sub-committee for minority rights was headed by Acharya Kriplani. (Ray, 2003)

 

Nature of Fundamental Rights

(1)    Issue of being Absolute Right: The Fundamental rights guaranteed in our constitution are not absolute. There are reasonable restrictions which can be imposed on these Fundamental Rights under required conditions and circumstances.

(2)    Justifiability of Rights: Article 32 makes it justiciable by conferring rights on every citizen to move to the highest court of the land for enforcement of his/her fundamental rights.

(3)    Rights available to citizens alone: Although they are in the nature of Human Rights and are universal in application but there are certain safeguards which have been provided to citizens of the country alone. It is with respect to the social, political and cultural contexts of India.

(4)    Amenability of Rights: After several tussle between the legislature and judiciary, the Supreme Court has held that parliament can amend and abridge fundamental Rights but not in such a manner as to change the basic structure of the constitution.


Amenability of Fundamental Rights: - The question whether Fundamental Rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India (AIR1952 1 SCR 89.). It challenged the validity of the 1st amendment to the Constitution.

The Supreme Court in its landmark decision overruled the decision given in the Shankari Prasad’s and Sajjan Singh’s case. It held that the Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the Fundamental rights. Eleven judges participated in this decision with the ratio being 6 : 5. The judges were worried about the numerous amendments made to abridge the fundamental rights since 1950.

In order to remove difficulties created by Golaknath’s decision parliament enacted the 24th Amendment. The amendment has made the following changes: (1) it added a new clause (4) to Article 13 which provides that nothing in this Article shall apply to any amendment of this constitution made under Article 368. (2) it submitted a new heading to Article 368 power of Parliament to amend the Constitution and Procedure therefore instead of Procedure for amendment of the Constitution.

Rights under Fundamental rights

 

Right to Equality (Article 14-18)

These articles cover the issue of equality comprehensively by adopting universally accepted standards of creating an equal society.

Article 14 implies equality before law3 and equal protection of law. Equality before law implies that no person has any special privilege with respect to the law of land.

Article 15 prevents discrimination on grounds of religion, caste, sex or place of birth. Article 16 provides equality of opportunity in matters of public appointment or appointment to any office.

Article 17 abolishes untouchability from being practiced in India. While Article 18 abolishes all forms of title leading to an era of equal treatment of citizens by the state.

 

Right to Freedom (Article19-22)

Article 19(1) of the constitution give citizens the right to Freedom of speech and expression, to assemble peacefully, to for unions or associations, to move freely throughout the territory of India, to practice any trade or profession.

The restrictions are defined in clause 2-6 under Article 19. In order to restore balance between freedom and social contract these reasonable restrictions are imposed where freedom of expression is subject to be restricted on grounds of decency, morality, public order, friendly relations with foreign countries, and unity and integrity of India.

Article 20 says that criminal legislation cannot be implemented retrospectively. That means a criminal can be punished with the punishment for the crime that prevails on the day of offence. In the same article clause B says that a person cannot be forced to give evidence against himself.

Article 21: Right to life. It has been the most holistically interpreted article which has added new dimension to improve life of ordinary people in the country. This article is also protected by the writ of habeas corpus under article 32 which means to have the body.

Right to education was made a fundamental right under Article 21A by 86th Constitutional Amendment; 2002.It stipulates the state to provide free and compulsory education to all between 6-14 years of age.

Article 22 deals with safeguards against arbitrary arrest and detention.

 

Right Against Exploitation (Article 23-24)

Article 23 prohibits traffic in human beings and prevents people from forced labour.

Article 24 deals in prevention of child labour in hazardous circumstances like mines, or factory.

 

Freedom of Religion (Article 25-28)

Article 25 deals with freedom of conscience and practice and propagation of religion.

Article 26 deals in freedom to manage religious affairs by establishing charity, to acquire property for religious purpose etc:

Article 27 gives freedom to individual to not pay any tax for promotion of any religion.

 Article 28 freedom to not attend any religious instruction in certain educational institutions.

 

Cultural and Educational rights (Article 29-30)

Article 29 deals with protection of language, scrip and culture of the minority. It also debars admission on grounds of religion, race, sex, language in institutions managed by state funds.

Article 30 is a right to minority community to manage and administer educational institution for preserving their script and culture.

Article 32 Right to constitutional remedies

It is the most important fundamental right as it confers the right to citizens to move the Supreme court for enforcement of the rights conferred by part III. It is Article 32 which gives Fundamental Right such a pride of place 2within the Indian Constitution.

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Directive Principles of State Policy

The Directives contained in (Article 36-51, Part IV) lays down a comprehensive programme for social and economic order for India. The constitution makers had the foresightedness to design directives in a manner where Ambedkar thought that future governments would be judged for their success or failure in implementing the directives under DPSP.

Classification

DPSP can be classified under four different ideals it tries to promote. They are Socialistic Ideals, Western Liberal Ideals, Gandhian Ideals and Ideals of Freedom Struggle.

1)      Socialistic Ideals: (Article 38,39,41,42,43, 43A,43B,45) The directives to minimize the inequalities in income and endeavour to eliminate inequalities in status flows from Article 38.

Article 39 tries creating an adequate means of livelihood for both men and women. Article 41 is an important directive with regards to Right to work while Article 42 deals in just and humane condition for work including maternity relief. Article 43 is a directive for promotion of decent living wage and promotion of cottage industries. Article 43A is a directive to make workers participant in the management of Industries. Article 43B inserted by 97th amendment is an attempt to professional management of cooperative societies.

(2) Gandhian Ideals: (Article 40,46,47,48)

Article 40 is the fulfilment of long held Gandhian dream of organizing socio-political life with village as the base of such an organisation. The directive for organisation of village Panchayat is the fulfilment of the same dream realized by 73rd and 74th Constitutional Amendment (1993) thereby ushering Panchayati Raj in India.

Article 46 deals in promoting the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections.

Article 46 deals in improving nutritional level and public health. So, the idea of prohibition flows from this directive.

Article 48 is an important directive on organization of agriculture and animal husbandry. It also asks for prohibiting the slaughter of cows and calves and other milkcrates.

 

3) Western Liberalism: (Article 39A, 44, 50)

Article 39 deals in Free legal aid to promote equality in justice. Article 44 is a directive to implement uniform civil code in India for the promotion of uniformity of civil code thereby realising the sense of unity and integrity. Article 50 deals in separation of judiciary from the executive in the public services of the state.

 

4) Ideals of Freedom Struggle: (Article 48A, 49,51)

Article 48A is a directive to safeguard, forest, environment and wildlife of the country. Article 49 deal with protection of monuments and places and objects of national importance. Article 51 aims to promote international peace and security.

 

Relationship between Fundamental Rights & Directive Principles of State Policies

1) Fundamental rights are in the nature of limitation to a state action but DPSP are positive instruments of instruction to the Indian state.

 2) The Fundamental rights aim at establishing rule of law and political democracy by guaranteeing equality, liberty religious freedom and cultural rights. They are reflective of the liberal principles of government. While DPSP are mainly Socialist, and Gandhian in orientation.

3) The Indian constitution makes Fundamental Rights justiciable i.e. their violation can be curbed through recourse to the judicial pronouncement. The Directive principles of State Policy aim at social welfare and economic democracy by promoting just social economic and political order.

4) The rights enumerated under Fundamental Rights tend to secure welfare of individual but DPSP seek to promote the welfare of the community.

 

Together, the Fundamental Rights and Directive Principles of State Policy comprise the human rights of an individual. According to Justice Bhagwati, “broadly Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights and together form the board spectrum of human rights”. They are intended to carry out the objective set out in the Preamble of the Constitution, i.e. to establish an egalitarian social order informed with political, social and economic justice and ensuring dignity of the individuals both the mainstream and the vulnerable and marginalized, Together they constitute what Justice Chandrachud described as the “conscience of the constitution”.

They were both placed on the same pedestal and treated as falling within the same category compendiously described as “Fundamental Rights. This is because - together the FRs and the DPSPs contain the philosophy of the Constitution. This philosophy can be described as the philosophy of the social service state. Both the preamble and the Directive Principles of State Policy give evidence of the unmistakable anxiety of the framers of the Constitution as a mighty instrument for the economic improvement of the people and for the betterment of their conditions. Equally noticeable throughout the relevant provisions is their determination to achieve this result in a democratic way by the rule of law. In other words, the provisions of Part III and Part IV considered in the light of the preamble emphasize the need to improve the social and economic conditions of the people and to attempt that task with the maximum permissible individual freedom guaranteed in the citizens.

Constitutional Relationship:

Although FR’s and DPSP are the complementarity, there has been a controversy surrounding the constitutional relationship (superiority or complementarity) between Fundamental Rights and Directive Principles, fuelling at times, a larger debate on the operation of parliamentary sovereignty and judicial supremacy. It has also resulted in not only in the enactment of some of the significant Constitutional amendments but also in the pronouncement of some of the classical 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 abridge certain rights described as Fundamental Rights, and to that purpose made the FRs justiciable under article 13. 2. To apply certain principles described as Directive Principles of the State Policy through policy enactments. The controversy and the debate primarily emanate from the justiciability and the non-justiciability of the FRs and the DPSPs respectively.

In post independent India adoption of welfare and distributive legislation measures led to restriction on individual rights like Right to Property. Enactment of a law to give effect to one of the directives could thus end up violating a FR and the violation could thus be challenged in the Supreme or the High Courts under Art 32 or 226 respectively. The relation between Fundamental Rights and Directive Principles changed from time to time in the light of judicial interpretation which can be categorized in the following ways: 1. Fundamental Rights are superior to Directive Principles. 2. Directives as Providing Reasonable Restrictions on Fundamental Rights 3. Principles of Harmonious construction. 4. Complementarity and Supplementary.

 

Phase 1: Superiority of Fundamental Rights: The Supreme Court in its earlier decisions attributed paramount importance to Fundamental Rights based on its justiciability. In the landmark judgment of State of Madras vs. Srimathi Champakam Dorairajan(1951) it stated that directive principles were expressly made unenforceable by Article 37 and therefore could not override the fundamental rights found in Part III, which were enforceable pursuant to Article 32.

Phase 2: Directives as Providing Reasonable Restrictions on Fundamental Rights. In its second phase of interpretation, the Supreme Court placed reliance on the Directive Principles for validating a number of legislations that were found not violative of Fundamental Rights. The directive Principles were regarded as a dependable index of; 1. Public Purpose, and 2. Reasonableness of restrictions on Fundamental Rights.

Phase 3: Harmonious Construction: In Mohammed Hanif Qureshi v. State of Bihar, the validity of U.P., M.P. and Bihar legislation which banned slaughter of certain animals including cows was challenged. It was contended that this ban prevented the petitioners from carrying on their butcher's trade and its subsidiary undertaking and, therefore, infringed their Fundamental Rights, inter alia, guaranteed under Article 19(1) (g).

The first attempt in this direction was made with the enactment of the Constitution 25th Amendment Act 1971 introducing a new provision under Article 31C into the Constitution. The object of the amendment was that it was enacted to get over the difficulties placed in the way of giving effect to the Directive Principles of the State Policy. The first part of Article 31C provides that “No law which is intended to give effect to the Directive Principles contained in the Article 39(b) & 39(c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or 19”.

After 1972 the value of the Directive Principles underwent a metamorphosis. Article 31C gave primacy to Article 39(b) & (C) over Article 14, 19 & 31C. The court emphasized that there is no disharmony between the Directive principles and the Fundamental Rights as they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare state, which is envisaged in the preamble.

 

Phase 4: Complementary and Supplementary: In Minerva v. Union of India, the Supreme Court by 4:1 majority struck down Article 31C as amended by 42nd amendment as unconstitutional on the ground that it destroys the basic feature of the Constitution. The court held that Article 31C was beyond the amending power of the parliament and was void since it destroys the basic features of the Constitution by a total exclusion of challenge to any law on the ground that it was inconsistent with any of the rights conferred by Article 14 or 19 of the Constitution.

The Court held that the unamended Article 31C is valid as it does not destroy any of the basic features of the Constitution. The unamended Article 31C gives protection to a defined and limited category of laws i.e. specified in Article 31(b) & (c). They are vital for the welfare of the people and do not violate Article 14 and 19. In fact, far from destroying the basic structure, such laws if passed Bonafede for giving effect to the directives in Article 39(b) & (c) will fortify the structure. (Sharan 1978) 

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