Fundamental Rights v. Directive Principles: Co-existence or Friction?
Introduction
Fundamental rights in the Indian Constitution are provided in Part III, from Article 12 to 35. Directive Principles of State Policy, on the other hand, are provided in the succeeding part, i.e., Part IV, from Article 36 to 51. While fundamental rights are those basic rights which every citizen holds universally and are crucial for one’s existence, the directive principles are merely guidelines to be kept in consideration by legislators while drafting a new law or policy. The key difference between the two is that fundamental rights are protected by the judiciary and can be enforced through the Courts of law[1], however, the directive principles are non-justiciable. This means a person cannot make the government answerable in Court for not strictly abiding by these principles as they have no legal sanction[2].
Another primary point of distinction is with regard to the nature of the two groups of provisions. The fundamental rights provided in Part III are essentially negative in nature, meaning that they impose restrictions on either the State or the citizens from acting in a certain manner. For instance, Article 15 aims to limit the State from discriminating against any citizen on certain grounds mentioned in the Constitution and Article 21 mandates that life and personal liberty cannot be denied to any person. The directive principles, on the contrary, are a set of instructions which are positive in nature. They do not impose any bars, but provide ideals for the State to achieve. To give an example, Article 38 states that the State should strive to promote the welfare of the people by establishing a just social order. The State is also instructed to minimise inequalities in income, status and opportunities among individuals.
Analysis
Directive Principles of State Policy (DPSP)
The idea of bringing in directive principles was borrowed, or perhaps influenced, from the Irish Constitution. In this section, the researcher has tried to discuss the genesis, need and the themes on which these principles are based on. First, to gauge the need for the directive principles, it is quite essential to understand the state of the country at the time of independence. In 1947, the country was ravaged was poverty and the truth about this cannot be hidden no matter how hard the Crown tried to portray their evil intentions as saintly interventions. It is no secret that the British historians have time and again attempted to chart a different course of history than what actually occurred.
Poverty and malnutrition weren’t even the biggest of concerns which plagued the country, rather it was the spate of communal riots that engulfed the nation and shattered the harmony into a million shards of glass, impossible to ever put together again or heal the wounds suffered by everyone alike. The situation was nothing short of a civil war and the consequence, i.e., the Partition, left scores of people homeless, jobless and most important of them all, without a family. The impact was so deep that it is no wonder the after-effects are felt up to date and survivors of the time shudder at the very mention of the time.
Thus, the Constitution drafters felt that in a poverty-stricken and sickness-infested country like India, the State must focus not just on the maintenance of law and order, but also upon the welfare of people and building up a new society for people to live in. The task of the State was not simply restricted to looking after the defence of the country, but to ensure that a vibrant democracy is set up and the socio-economic well-being of citizens is looked after. To bring these goals of the State under the aegis of the Constitution and provide such ideals a statutory recognition, the Directive Principles of State Policy were incorporated. In a nutshell, it can be said that the makers of the Constitution imposed an obligation upon the State to initiate affirmative action in defined spheres of life, in a bid to achieve prosperity in society and construct a welfare State. A welfare State, in the words of the Supreme Court in the case of Lala Ram v. Union of India[3], refers to “the greatest good of the greatest number and the benefit of all and the happiness of all.”
The nature of the DPSP under Article 37, however, renders them non-justiciable and unenforceable through the Courts. These principles are not to be construed as legal rules for they are at best, moral principles to be followed by the State. The idea of the framers was that they would serve as moral restraints on the people occupying positions of power. In fact, Dr. Ambedkar stated in the Constituent Assembly that a party which fails to implement these principles would stand to lose the next elections[4]. Thus, the reasoning behind their non-justiciability was that there would be sufficient political transparency to ensure the accountability of the government in implementing the principles in good faith. Another crucial reason for not making these principles enforceable is that they are positive obligations on the State, unlike the fundamental rights. If the government is forced to perpetually focus on implementing these principles, there would be a severe financial crunch for bringing about new developments and technologies into the country.
The reason provided above is subject to severe criticism from all quarters. Not providing legal sanctions to the principles has left them without any teeth. It is not clear whether the argument against enforcement of the DPSPs is economically sound. The objective of the DPSPs is to transform the nation into a welfare State, thus, if the government spends its financial resources in this arena, it would not be for a moot cause. In my opinion, the framers erred in depriving the principles of statutory sanction, because the country is far from having become a welfare State. Had these principles been enforceable, many a law and policy of the ruling dispensation could have been challenged and struck down on the grounds of being opposed to the goal of establishing a welfare State, which should be of the utmost importance and priority.
However, even the Supreme Court has been caught in two minds over the enforceability of the Directive Principles. In the case of Lily Thomas v. Union of India[5], the Court declared that it had no power to issue directions for enforcing the Directive Principles of State Policy. But in another case, the court had observed that, “Ordinarily, any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be a reasonable restriction in public interest.[6]” Nevertheless, since the principles are positive obligations, a law cannot be declared invalid on the grounds of inconsistency with Directive Principles. It is reasonable to conclude that the DPSPs are merely statements forming a moral compass for the legislature to act upon, but they cannot direct them in a specific direction.
Fundamental Rights
Every person, simply by virtue of being human, possesses a few characteristic human rights that are unalienable in character. These rights are very basic in nature, along with being extremely essential for a natural course of life. It is the general consensus that in a democratic set-up, it is the duty of the State to provide and guarantee the protection of such natural rights in a bid to preserve the freedom of human beings. The State is to recognise such inherent rights and provide them to all its citizens. The Declaration of the French Revolution, 1789, is one of the first documents to recognise the concept of human rights. It stated that ultimately, the aim of any political association is to conserve the natural rights of man. In a way, these rights are safeguards for people against the arbitrary exercise of power by the State.
The acceptance of such rights also marks a shift in society from being group-centric to individualistic in character. In traditional society, there was no concept of individual unalienable rights because the group, not the individual, was the basic unit of society. Once society began to segregate individuals from the group, a need was felt to represent rights of the individual and provide a mechanism for protection from excesses of the state. The cumulative effect of all this is the entrenchment of certain fundamental rights which are then thrown out of reach of the political class. This means that the State can no longer interfere, amend or infringe these fundamental rights, thus guaranteeing a minimum freedom to all.
The Constitution of United States, is the first Constitution in the world to guarantee human rights to its citizens. Although the original draft of the Constitution did not contain any recognition of the same, the Bill of Rights of 1791 was incorporated to introduce rights for protection of life, liberty and property. A proper, concrete structure was given to such rights by the adoption of the Charter of Human Rights by the United Nations. In the Indian Constitution too, the fundamental rights form the bedrock of all other subsequent provisions. The Indian society, before Independence in 1947, had been witness and subject to the most terrible and heinous of human rights violations by the British rule. Thus, it was imperative that the writers of the Constitution inculcate such provisions that enunciate the Fundamental Rights of people. Also, the people who ended up drafting the Constitution had themselves been an integral part of the struggle culminating in Independence. In this struggle, they had been mercilessly beaten up, flogged, watched their people being murdered and had also been imprisoned for long years. Therefore, the idea of providing unalienable rights to citizens must have been incubating in their minds for long.
The need for such rights was very strong to send a message out to people that their liberty was secure. Confidence and belief also had to be injected in people in the idea of democracy after the British left the country, hence a comprehensive chapter containing fundamental rights was penned down. It is essential to remember at this juncture that the fundamental rights form a part of the basic structure of the Constitution, as propounded in the Kesavananda Bharati case. These rights are an inherent part of the Constitution and if the rights are killed, the entire Constitution dies along with them. Although, the extent and scope of these rights can be curtailed temporarily in times of Emergency.
Critical Analysis
The Supreme Court, in the case of Javed v. State of Haryana[7], held that “Fundamental Rights must not be read in isolation but along with directive principles and fundamental duties.” In this section of the paper, the researcher has analysed the relation between fundamental rights and directive principles of state policy to determine whether they co-exist without glitch or if there is any friction. At the outset, it must be noted that the judicial position on the interrelationship has been very dynamic and polar, changing time to time. There are also many inherent contradictions between the two sets of provisions which have often erupted in controversy. There has also been a raging debate as to which of the two has primacy over the other and whether they should be integrated or if they are irreconcilable.
The initial position taken by the Courts was that directive principles could not, in any case, override fundamental rights. It was iterated that fundamental rights override directive principles. In the case of State of Madras v. Champaka Dorairajan[8], a government order which had the effect of reserving seats in a medical college on communal lines was challenged on the ground that it was violative of Article 29(2), a fundamental right. The government took the defence that the order was implemented in pursuit of the Directive Principle of State Policy contained in Article 46. Rejecting this contention, it was held by the Court that “The Directive Principles which by Article 37 are expressly made unenforceable by a court, cannot override the provisions found in Part III (Fundamental Rights) …” It was also stated that the DPSPs should run as a subsidiary to the Fundamental Rights.
The perception of the primacy of fundamental rights over directive principles started changing and the Court’s attitude on the relationship between them also underwent a change. The Re Kerala Education Bill case[9], signified the changing times. Here, the Court observed that although the Fundamental Rights have primacy, the Directive Principles must not be ignored. The principle of ‘harmonious construction’ was propounded whereby the Court attempted to give effect to both as much as possible and stated that there is no inherent conflict between the two. The outlook of the Court was that both of them co-exist harmoniously and that “they are complementary and supplementary to each other.”
This outlook of the Courts has continued further since then as the Court has reiterated that the judicial tendency is to use Directive Principles with the objective of interpreting Fundamental Rights and subsequently give harmonious effect to the values underlying both[10]. In the case of Golak Nath v. State of Punjab[11], it was stressed and emphasized by the Supreme Court that the “Fundamental Rights and Directive Principles constitute an integrated scheme” which “respond to the changing needs of the society.” In the landmark case of Kesavananda Bharati v. State of Kerala[12] too, it was observed by the Court that “Fundamental Rights and Directive Principles constitute the conscience of the Constitution” and that “there is no antithesis between them.”
In the case Ashoka Kumar Thakur v. Union of India[13], it was held that there could be no distinction between the two and that the directive principles are not of secondary importance. The Court observed that while fundamental rights represent civil and political rights, the directive principles represent social and economic rights. By now, the position of the Courts had transformed completely from one adopting a view that both sets of provisions are exclusive of each other to a view that they both supplement each other and need to be interpreted together in a coherent manner. Thus, the integration of the Directive Principles and Fundamental Rights was complete.
In the Minerva Mills v. Union of India[14] case, it was remarked succinctly that the “Fundamental Rights are not an end in themselves, but are means to the end.” Here, the end being referred to is the welfare state envisioned in the Directive Principles of State Policy. This statement makes it crystal clear that both sets of concepts are not to be construed as separate. In fact, as observed in the Olga Tellis[15] case, “the Directive Principles are fundamental in the governance of the country and they must, therefore, be regarded as equally fundamental to the understanding and interpretation of the meaning and content of the Fundamental Rights.”
Conclusion
In spite of certain inherent contradictions between the objective of guaranteeing Fundamental Rights to citizens and the ultimate aim of establishing a welfare state as part of the Directive Principles of State Policy, an integrative approach has been developed where both can be harmoniously interpreted to give effect to the values underlying both. Today, the Directive Principles are used to give meaning to the Fundamental Rights because the fundamental rights are nothing but a means to obtaining the goals envisioned by the directive principles. Keeping one excluded from the other in interpretation would be a great sin, for: depriving fundamental rights of directive principles will take away the set of ideals that the rights strive to provide, and on the other hand, taking away the fundamental rights away from directive principles would be akin to stripping a handyman of his/her tools, leaving him/her nothing to work with.
Footnotes
[1] Article 32, Constitution of India.
[2] Article 37, Constitution of India.
[3] (2015) SCC 813.
[4] Jasti Chelameshwar and Dama Seshadri Naidu (eds.), INDIAN CONSTITUTIONAL LAW, 4th rep. 2019, 8th ed. 2018, pg. 1466.
[5] AIR 2000 SC 1650.
[6] Workmen, Meenakshi Mills Limited v. Meenakshi Mills Limited, AIR 1994 SC 2696.
[7] (2003) 8 SCC 369.
[8] AIR 1951 SC 226.
[9] AIR 1958 SC 956.
[10] Supra note 11, pg. 1471.
[11] AIR 1967 SC 1643.
[12] AIR 1973 SC 1461.
[13] (2008) 6 SCC 1.
[14] AIR 1980 SC 1789.
[15] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
Disclaimer: This article was originally published on the ProcejureLaw website on May 30, 2020 — https://procejurelaw.co.in/2020/05/30/fundamental-rights-and-directive-principles-coexistence-or-friction/.
