INTER-RELATION BETWEEN FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE POLICY ...

INTER-RELATION BETWEEN FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

WHAT ARE FUNDAMENTAL RIGHTS?

Fundamental rights are certain basic rights which are necessary condition for a free humans, society and are considered inalienable under all circumstances, such right to life or freedom of speech and expression etc.

RELEVANCE FROM OTHER COUNTRY | The United State of America incorporated Bills of Rights in their Constitution and were first to give it a Constitutional status.

Part III of the Indian Constitution contains the Fundamental rights and it is considered as Magna Carta of India.

WHY FUNDAMENTAL RIGHTS MUST BE RECOGNISED?

Most important basic rights must be kept beyond the oppression of transient majority

Fundamental Rights serves two purposes:

1. They help people identify their rights and claim for one

2. It acts as limitation on government ( Not to touch them by their actions )

Thus they are basically supreme rights of our country with inbuilt reasonable restrictions. Guaranteed by Constitution and protected by Judiciary.

CASE LAW TO NOTE | Maneka Gandhi v. Union of India, the court observed that: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions.”

RELEVANT LEGAL PROVISION: FUNDAMENTAL RIGHTS ART 12 – 35 – DIVIDED UNDER 6 HEADS

ENFORCEABILITY OF FUNDAMENTAL RIGHTS | Fundamental rights are highly enforceable supreme rights because

1. Article 13 : Declares any law in contravention of fundamental rights to be void

2. Article 32 and 226: Empowers people to approach Supreme Court and High Court respectively if their fundamental right is violated.

WHAT ARE DIRECTIVE PRINCIPLES OF STATE POLICY?

Initially the State were mainly concerned with the maintenance of law and order and protection of life, liberty and property # POLICE STATE

However, this restrictive role is no longer valid in the era in which we live in today. Now the states are WELFARE STATES concerned with the prosperity and well-being of the people.

So DPSP was recognized!

From where we got them? These principles are contained in the Part IV of the Indian Constitution, are borrowed from the Constitution of Ireland.

The Directive Principles are social and economic policies which are to be pursued by the Government.

How to use DPSP ? These are the ideals which should be kept in mind while framing the laws or policies.

THE DIRECTIVES CAN BE DIVIDED INTO FOLLOWING:

ENFORCEABILITY OF DPSP:

The Fundamental rights are to be read along with the Directive principles and fundamental rights; they cannot be read in isolation.

POINT TO NOTE | However unlike the fundamental rights these principles are specifically made unenforceable by the court of law as provided under the article 37 of the Indian Constitution which states that:

“Application of the principles contained in this Part: The provisions contained in this Part shall not be enforceable 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.”

CASE LAW | Lily Thomas v. Union of India, the court held that: “this court has no power to give directions for the enforcement of the Directive Principles of the state… this court has time and again reiterated the position that directives… are not enforceable in courts as they do not create any justiciable rights in favor of any person.”

CASE LAW |U.B.S.E. Board v. Hari Shankar, However, the courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy.

WHAT ARE FUNDAMENTAL DUTIES ?

CONCEPT | As we know that the rights and duties are corelative, so fundamental duties are added to the Indian Constitution as a constant reminder to the citizens that they are to observe certain basic norms while they enjoy the fundamental rights conferred on them by the Part III of the Constitution.

INSERTION | These fundamental duties were added by the 42nd Amendment act, 1976 by incorporating a new part i.e., Part IV A to the Constitution. The article 51A initially had 10 duties and 11th duty was added by the 86th Amendment act, 2002 by adding clause (k) to the article.

APPLICABILITY | These are directed to the citizens only, unlike fundamental rights as some of the fundamental rights such as article 14 applies to non-citizens as well.

So! Fundamental duties are citizen duties

ENFORCEABILITY OF FUNDAMENTAL DUTIES | However, these duties are non-enforceable but they can be promoted by the Constitutional means.

CASE LAW| P. A. Inamdar v. state of Maharashtra, it was held that the fundamental duties as provided under article 51A can be used to interpret the ambiguous statutes.

INTER-RELATION BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY-

CONCEPT| The article 37 of the Indian Constitution provides that the Directive principles though being fundamental in the governance of the country and states shall be duty bound to apply them in making laws but they are expressly made non-justiciable.

But what is their relationship between fundamental rights ? If DPSP and FR collide which can stand out ?

BEGINNING| Initially the courts adopted the literal legal position in this aspect. Meaning article 37 was literally followed. CASE LAW| State of Madras v. Champakan Dorairajan,

FACTS | A government order was made in pursuant of article 46 ( DPSP ) and it was vin conflict with Article 29(2) ( FR )

the Supreme Court observed that:

“The Directive Principles of the state policy, which by article 37 are expressly made unenforceable by courts cannot override the provisions found in part III……. The chapter on Fundamental Rights is sacrosanct and not liable to be abridged by legislative or executive act or orders, except to the extent provided in the appropriate article in part III. The Directive Principles of state policy have to conform and to run as subsidiary to the chapter on fundamental rights……. However, so long as there is no infringement of any fundamental right to the extent conferred by the provisions in part III, there can be no objection the state acting in accordance with the directive principles set out in part IV…”

CASE LAW| Mohd. Hanif Quareshi v. The State of Bihar, the court has observed: “the directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights".

CHANGE OF ATTITUDE| Later the attitude of the courts changed and it started giving value to the Directive Principles from a legal point of view and favored harmonizing the fundamental rights and Directive principles.

CASE LAW| State of Bihar v. Kameshwar Singh, the court held that the Zamindari abolition act was passed for the public purpose as provided in the article 31, by relying on the article 39 of the Indian Constitution.

If FR and DPSP collide what could be done ? Try to harmonize the conflict – Where two judicial choices are available , the construction in conformity with social philosophy of directive principle has preference.

Thus court can interpret a statute to implement DPSP instead of keeping them a dead statute.

Need and reason for harmonization | Lawmakers are not completely unmindful of DPSP. So make sure to respect their views.

CASE LAW| Kerala Education Bill, the court held that while determining the scope and ambit of the Fundamental Rights relied the Court may not entirely ignore the Directive Principles of State Policy as laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.

CASE LAW| Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, the court held that he fundamental rights and Directive principles are supplementary and complementary to each other.

Regarding the Directive Principles of State Policy Dr. B. R. Ambedkar said that:

“If any Government ignores them, they will certainly have to answer them before the electorate.”

Now! At this stage it became that both FR and DPSP was viewed as co-equal by courts

CASE LAW| Golak Nath’s case the court observed that the Fundamental Rights and Directive Principles formed an integrated scheme, further it was stated they are elastic enough to respond to the changing needs of society.

CASE LAW| Kesavananda Bharati v. State of Kerala, the Supreme Court observed that the Fundamental Rights and Directive Principles constitute the "conscience of the Constitution" and there is no antithesis between them rather one supplements the other. Both Part III and IV have to be balanced and harmonized then alone the dignity of the individual can be achieved. They were meant to supplement each other.

CASE LAW| Ashoka Kumar Thakur v. Union of India, the court held that the fundamental rights represent the civil and political rights whereas the directive principles represent social and economic rights and merely because the directive principles are non-justiciable does not mean that they are of subordinate importance.

SO, we can see that in the course of time the attitude of the courts has changed in respect of the Directive principles of State Policy from literal interpretation of article 37 to integration of fundamental rights and Directive Principles of State Policy.

CASE LAW| Minerva Mills v. union of India, the court observed that the Fundamental Rights are not an end in themselves but are the means to an end and the end is specified in the Directive Principles. The Fundamental Rights and Directive Principles together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution and hence to give absolute primacy to one over the other is to disturb the harmony of the Constitution as this harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the Constitution.

CASE LAW| Unnikrishnan v. State of Andhra Pradesh, the court held that the Fundamental Rights must be construed in the light of the Directive Principles.

DPSP USED TO BROADEN THE SCOPE OF FR| This integrative approach towards Fundamental Rights and Directive Principles has now become a judicial strategy to define the scope and the ambit of the fundamental rights. Mostly, Directive Principles have been used to broaden the fundamental Rights. The biggest beneficiary being article 21 of the Indian Constitution.

DPSP leading to widening scope of FR

Article 14 read with 39(d) promised the concept of equal work for equal pay

DPSP was used to check reasonableness under article 19 :

· Banning of slaughtering of cows and bulls to ensure adequate supply of milk and cattle for agriculture was held to be reasonable under article 19 (6), when read with article 47 and 48 DPSP.

· Imposing wealth tax was held reasonable to prevent concentration of wealth supporting DPSP Art 39 (c).

CASE LAW| Kesavananda Bharti case, the 25th amendment, act, was held valid by the by the Court in this case.

What did 25th amendment do ? Article 31 C was enacted – which gave primacy to 39(b) and (c) over 14,19 and 31.

The Court stated that the Directive Principles and the Fundamental Rights supplement each other and there is no disharmony between them. Both have the goal of bringing about a social revolution and the establishment of a welfare state as provided in the Preamble of the Indian Constitution. The court observed that:

"... In building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles.... Economic goals have an uncontestable claim for priority over ideological ones on the ground that excellence comes only after existence. It is only if men exist that there can be Fundamental Rights……. if Parliament, in its capacity as an amending body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution the Supreme Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant."

AMENDMENT| By the 42nd Amendment Act, 1976 all Directive Principles were sought to be given precedence over Arts. 14, 19 and 31.

CASE LAW| Minerva Mills v. Union of India, in this case the Supreme Court did not uphold the 42nd Amendment, act as constitutional.

CASE LAW| I.R. Coelho v. State of Tamil Nadu, the court held that:

"By enacting fundamental rights and directive principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental rights and directive principles have to be balanced. That balance can be tilted in favor of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution. “

After this discussion it can be safely said that the Courts have used Directive Principles not to restrict the scope of fundamental rights rather to expand it.

So finally we can say fundamental right is negative concept which state should not abridge, whereas DPSP is a positive concept which state must follow. Thus it becomes the duty of courts and state to strike a balance between both ends and work in harmony.

CONCEPT| There is no provision which clarify the relation between the fundamental rights and fundamental duties.

CASE LAW| Union of India v. Naveen Jindal, in this case the court held that fundamental duties are implicit in the concept of fundamental rights, the duties providing certain restrictions on the exercise of the rights.

CASE LAW| Ashoka Kumar Thakur v. Union of India, the court observed that:

"State is all the citizens placed together and hence though Article 51-A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State.”

ENFORCEABILITY |

Some of the duties are enforced by law like activities that disrupt sovereignty and integrity of India are punishable .
31 C also enables legislature to make laws for implementing fundamental duties
Some duties are vague and are mere ideas which cannot be enforced example : 51 A (b) to cherish and follow the noble ideals which inspired our national struggle for freedom

Then what actually is the practical usage of these duties ? Since some are already enforced, rest serve to be directory. They can be used to interpret ambiguous statue # PA Inamdar V. State of Maharashtra ( 2005 ). This does not stop here they are also used to examine the reasonableness of restrictions # Re Ramlila Maiden Incident (2012)

CASE LAW| Bijoe Emmanual v. State of Kerala: The article 51A(a) provides that every Indian citizen should show respect to national anthem, however, so far, no law has been made obliging anyone to sing the anthem so a person shows no disrespect to the National Anthem if he stands up respectfully when the National Anthem is sung but does not join in the singing.

CASE LAW| Shyam Narayan Chouksey v. Union of India, it was held that playing of national anthem prior to screening of a cinema is not mandatory.

CASE LAW| P. N. Bhargava v. University Grant Commission, it was held that the decision of the University Grants Commission to introduce Vedic Astrology as a part of graduation, post-graduation and PhD courses does not conflict with Art. 51-A (h).

INSERTION| Clause (k) was added to article 51A in 2002 along with Art. 21 A. Both these articles put an obligation upon the State and parents respectively. The State is concerned with free education, whereas parents are concerned with compulsory. Education. However, Article 51A-(k) does not penalize parents or guardian for failing to send children to school.

Fundamental duty and DPSP : Fundamental duty is duty assigned to citizen, whereas directive principles of state policy is duty assigned to state as a whole.

Example :