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.
1.B.A Political Science 1st Lesson Important Notes
2.B.A Political Science 2nd Lesson Important Notes
3. B.A Political Science 3rd Lesson Important Notes
4.B.A Political Science 4th Lesson Important Notes
5. B.A. Political Science 5th Lesson Important Notes
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)
4.B.A Political Science Hons. History Lesson 4th Important Notes Part 2
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