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Co-Relation Between The Fundamental Rights And Directive Principles Of State Policy: Committing To Social Revolution

Inspired by the American �Bill of Rights�, Part III of the Constitution (Articles 12 to 35) embedding the Fundamental rights is right regarded as the Magna Carta of India.[1]
Having borrowed the concept of Directive Principles of State policy from the Irish Constitution in an era of laissez fair, we further having ushered into the era of Welfare State, the mindset of the Constitutional framers who with an aim to improvise the socio-economic conditions of the Country, introduced the concept of DPSPs in part IV (Articles 36 to 51) of the Constitution, can be understood. It was their firm belief that without this, political democracy in India was of no productivity.[2]

Having elucidated the Constitutional requirement by the government for the establishment of a welfare State at both State and Central level in order to secure welfare of the people,[3] the SC has also elucidated the nature of such state as to provide �optimum and desirable levels of social services�.[4]

Thus, having described by Ambedkar as �novel features� of the Indian Constitution and coupled up with the Fundamental rights, these being the core philosophy imparted by it,[5] Granville Austin has rightfully described the duplet as �conscience of the Constitution�.[6]

Inter-relation between FRs and DPSPs:
Because of the Fundamental rights being enforceable in a court of law while the DPSPs being not, and the same having caste positive obligations on the State to meet certain standards of welfare under Article 37, a conflict usually arises when a law forwarding a directive principle is found to be in contravention to the Fundamental rights.[7]

Analyzing the conflict- Initial approach adopted by Courts and the Legislature:
In State of Madras v. Champak Dorairajan, whereby a Government order made in furtherance of a directive principle under article 46 was contested to be violative of article 29(2), it was held by the SC that DPSPs being unenforceable as contrast to the FRs which are enforceable, the same cannot be overridden by DPSPs which are subsidiary and have to conform with the FRs as they are sacrosanct and to not be violated by legislations and executive orders.[8] However, also held in the case was that FRs could be amended by the Parliament effecting in the Parliament making the 1st, 4th and the 17th Amendment Acts in order to implement certain DPSPs.[9]

Although the SC in Golakhnath v. State of Punjab stated that the FRs and DPSPs together constituted an �integrated scheme� that allowed for answering the growing wants of the society, it held that the FRs cannot be violated by any legislation passed by the Parliament and thus amendments cannot be made to them in order implement the DPSPs.[10]

However, the Parliament bringing in the 24th Amendment Act, 1971, modified the proposition by laying down that it could restrict the FRs by making Constitutional Amendments. Similarly, the 25th Amendment Act was enacted which introduced article 31 C.

The Article made way for the following provisions:
  1. Any legislation passed by the Legislature in order to implement directive principles under article 39(b) [State to control and distribute the material resources and ownership for the common good][11] and 39(c) [that concentration of wealth does not take place][12] cannot be contested on the basis of it being violative of the FRs under articles 14, 19 and 31(right to property)
  2. Thus, none such policy could be challenged in a Court of law.

This provision that disabled judicial review was however declared to be unconstitutional in the Kesavananda Bharti Case that held that the same was a part of the basic structure of the Indian Constitution that could not be amended.[13] The SC however held the provision preferring DPSPs over FRs under article 31C as valid and in the judgement has observed that there being no conflict between the FR s and the DPSPs, they together contain the �conscience of the Constitution� and are supplementary to each other. Further, as observed by Grover J. to achieve the dignity of an individual, they have to be construed in harmony.[14]

The next move of the Parliament that placed the DPSPs above the FRs under article 14,19 and 31 was through enacting the 42nd Amendment in 1976 in which the rule as embedded in article 31C was extended such as to cover all the DPSPs rather than only 39(b) and (c) which were initially held to be supreme over the FRs.[15]

However, this position was once again altered and the supremacy of the FRs reinstated except over 39(b) and(c) by the Minerva Mills case.[16] Also, the right to property was later discarded through the 44th Amendment.[17]

Harmonious Construction:
Initially held by the SC in Re Kerala education bill case, Das J. though having upheld the supremacy of the FRs over the Directive Principles, had stressed upon the harmonious interpretation of FRs and DPSPs.[18] The usual approach adopted by the Courts was to interpret in such a way that the core principles and aims embedded in the DPSPs is realised and to emphasize that both of them do not possess any conflict between them and go hand in hand i.e., are complementary as well as supplementary.[19] Such a harmonious construction along with trying to resolve any inconsistency was the course adopted by Courts.[20]

Political v. Social and Cultural Rights:
In Ashoka Kumar Thakur v. UOI, stressing on the importance of the Directive Principles, the Court held that while the civil and political rights are embedded under the Fundamental Rights, the DPSPs enshrine the Social and cultural rights and even if being not enforceable in a court of law, they had their own significance not lesser than the FRs.[21]

DPSPs, Social revolution and their importance in interpreting Fundamental rights:
The underlying aim of the DPSPs to fulfil certain socio-economic goals instantly, without any violent revolution and contradiction has been explained by the SC in Pathumma v. State of Kerala.[22] In the words of Chandrachaud CJ, �FRs are not an end in themselves but means to an end�.[23] Further as stated by him in Minerva Mills case, the ends being specified in the Directive Principles, they together with FRs form the �core commitment to social revolution�.[24]

Further, they being the conscience of the Constitution, it rests on the bedrock of the balance between FRs and DPSPs.[25] If in case this balance is disturbed, it will indirectly affect the basic structure of the Constitution.[26] Reiterating the above principles and regarding the trinity of Preamble, FRs and DPSPs as the Conscience of the Constitution, in Dalmia Cement(Bharat) Limited v. UOI, it was said that this complementary and supplementary interpretation will result in commitment to social revolution through rule of law.[27] Thus, FRs were to be interpreted in consonance with DPSPs.[28]

Hence, the Parliament can implement the DPSPs by amending the FRs, but this should not in turn affect the basic structure of the Constitution.

End of emergency and introduction of Public Interest Litigation: The fundamental rights of Indian citizens having been violated on huge scale during the 1975-77 emergency declared by Indira Gandhi Government, the consequential effect was the emergence of Public Interest Litigation, which lightened the norms and paved way for issues not normally discovered before and guarded the rights of majority of people which were affected by the same. The judiciary acted as the guardian of the �rule of law�.[29]

Broad interpretation of Right to life in Maneka Gandhi case and the consequential interpretation:
As held in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi[30], atleast covering the bare necessities of life (nutrition, shelter, clothing as well as various facilities for human expression), the expanse of right to life dwells on the socio-economic development of the nation.

Thus, after the broad interpretation of the right to life in Maneka Gandhi case laying the foundation for granting various positive rights not explicitly stated in the Fundamental rights, the Courts in many cases read article 21 together with various DPSPs to further socio-economic rights and goals thus establishing various rights and dealing with various issues as follows
  • right against torture [31
  • right against bondage[32],
  • right to livelihood[33],
  • right to a healthy environment free of pollution[34],
  • right to legal aid[35],
  • workers� rights to safety and security[36], etc.
Children�s rights:
The issue of child abuse and forced prostitution was answered in Vishal Jeet VS. Union of India[37] and the right of children to be employed under hazardous industries was addressed in M.C. Mehta v. State of Tamil Nadu.[38]
  1. Right to Work:

    Facilitating the right to work and providing �public assistance in cases of unemployment� is a duty that the State owns under article 41 of the Constitution.[39] Similarly, article 43 provides for living wages and an reasonably adequate standard of life to the workers.[40]

    In K.Rajendran v. State of Tamil Nadu, whereby there government jobs were cancelled out massively, the Court having confirmed the responsibility of the State under articles 38 and 43 as to facilitating jobs for the citizens, this onus in deed did not directly give a right to the citizens to a civil service job resulting which it would be that their right would be fulfilled and a vast majority of people who did not have a government job, theirs wont.

    Also, for persons asked to leave the job, it was held that rehabilitation was to be dealt with by the policy and no right as such emerged. [41] However, the Court has directed to regularize the posts of temporary workers and the services rendered by them by elaborating upon the Constitutional duties of the State under the DPSPs.[42]

    In Bandhua Mukti Morcha v. UOI, upholding the right to live with human dignity under article 21, held that the same could be fully realised to its potential only by securing aims mentioned under the DPSPs of article 39(e) and(f), 41 and 42. It ordered to release bonded labourers from exploitation and also their effective rehabilitation as it was the duty of the State to secure just and human conditions. [43]

    The SC in Vishakha v. State of Rajasthan with a combined reading of articles 21 and 42 dealt with the problem of sexual harassment of women at workplaces by laying down certain guidelines that need to be followed.[44] In National Textile Workers Union v. P. R. Ramakrishnan while considering the rights of the workers to engage in the management as expounded under article 43-A, the Court upheld their right to be heard before a Company was wound up.[45]
  2. Right to Shelter:

    The right being covered under right to adequate standard of living, article 11, ICESCR, it has been held by the SC to be falling under the ambit of right to life under article 21 that includes a �reasonable accommodation for living �[46]. However, the general approach taken by Courts which usually face cases of pavement dwellers seeking such rights can be interpreted as not granting a positive right capable of being enforced and has thus not covered the issue from a human right perspective.

    Firstly, having contended and confirmed that right to livelihood is included in art 21, in Olga Tellis, the Court denied the contention that eviction from pavement dwellings was violative of the right as it observed that the use of public property(pavement) for private purposes was total unauthorized.[47]

    Similarly, in Municipal Corporation of Delhi v. Gurnam Kaur, the Court rejected any legal right guaranting pavement squatters rehabilitated shops in return by the Delhi Municipal Authority because of the duty it possessed[48] and in Sodan Singh v. NDMC, a Constitutional bench of the SC again denied such right to have been possessed by people who could engage in trade on such public places i.e the pavement.[49]

    However, in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, confirming the Constitutional obligation of the State under articles 38, 39 and 46 has observed that the State must as a part of its socio-economic policy try to provide for socio-economic justice by availing to the people shelters to live in or resources to get settled, so that their right to life is perfectly realised.[50]
  3. Right to health

    Right to health being considered a fundamental right as under the ambit of right to life under article 21[51], it read along with articles 41 and 42 of the Constitution help realise the right to maternity relief. Similarly, making a joint reading of articles 39(e), 47 and 48A, the Court has elucidated the duty of the State to improve public health and the environment.[52]
  4. Right to education

    Rights of children to not be employed in hazardous industries is a FR. However, beginning from when the Constitution was enforced, within ten years, the State owed a duty to provide free and compulsory education to children below the age of 14 years while such right to education within economic limits of the State is expounded in article 41, thus right to education being embedded explicitly only in the DPSPs.

    It was firstly held in Mohini Jain v. State of Karnataka that this right is a fundamental right that can be enforced.[53] However, the proposition being re-examined in Unnikrishnan v. State of Andhra Pradesh, whereby the State had endeavored to regulate the capitation fees levied by private medical and engineering universities and the same being challenged by them as violative of their right to carry on business, the Court held that the passage of 44 years, almost 4 times than that mentioned in the Constitution to grant primary education to children was enough to convert the obligation to provide such education as expounded under article 45 into a right that is enforceable.[54]

    Further, it laid that article 41 helps realize the right to education part under article 21, thus being an implicit right under it which had been interpreted in such manner by the Court due to its fundamental importance.[55]
  5. Help to realize rights by determining restrictions:

    DPSPs furthering social and economic goals, a policy based on the lines can be said to be made for public purpose and thus in State of Bihar v. Kameshwar whereby zamindari was done away with by a legislation the same was read in consonance with article 39.[56]

    Similarly, restriction have been imposed on the trade of liquor and narcotics as under article 47 of the Constitution, the State has the duty to ban products that may have hazardous effects on the health of citizens. Thus, such a restriction on such freedom of trade granted under article 19 is a reasonable one, however, until and only if it has hazardous effect on the health as has been expounded in article 47, hence excluding sale of liquor for medicinal purposes.[57]

    In Nashirwar v. State of Madhya Pradesh, it was thus held that due to article 47, the citizens may not possess the fundamental right under article 19 to carry out trade in liquor.[58] This restriction was made applicable to narcotics in Har Shankar v. Deputy E and T Commissioner.[59]

While various political rights being embedded in Part III of the Constitution, India being a welfare state laid out some socio-economic rights and guidelines for the Government to achieve its goal of Public welfare. Thus� the relation between the two has seen harmonious construction in order to safeguard the rights of the people and the judiciary has played an important role in interpreting these rights such as right to health, education, etc. DPSPs are quintessential to interpreting FRs and together are the conscience of the Constitution and thus need to be interpreted in consonance and harmony such as to achieve public good.

[1]5th Edition, M Laxmikanth, Indian Polity, Mc Graw Hill Education, pg 7.1.
[2] 8TH Edition, MP Jain, Indian Constitutional Law, Lexis Nexis, pg1465.
[3] Paschim Banga Khet Maazdoor Samity v. State of West Bengal, (1994) 4 SCC 37(India).
[4] Lala Ram v. UOI (2015) 5 SCC 813(India).
[5]Laxmikanth, supra note 44 at pg 8.1.
[6] Granville Austin, The Indian Constitution-Cornerstone of a Nation, Oxford, 1966, pg. 75.
[7] Laxmikanth, supra note 44 at pg 8.1.
[8] State of Madras v. Champak Dorairajan, 1951 SCR 525(India).
[9] Laxmikanth, supra note 44 at pg 8.5.
[10] Golakhnath v, State of Punjab, 1967 SCR (2) 762(India).
[11] India Const. Article 39(b)
[12] India Const. Article 39(c)
[13] Kesavananda Bharti v. UOI, (1983) 4 SCC 225 (India).
[14] Id.
[15] The Constitution (Forty second Amendment) Act, 1976.
[16] Minerva Mills v. UOI, AIR 1980 SC 1789 (India).
[17] The Constitution (Fortyfourth Amendment) Act, 1978.
[18]Re Kerala education bill, AIR 1958 SC 956(India).
[19] Chandra Bhavan Boarding and Lodging v. State of Mysore, AIR1970 SC 2042 (India).
[20] State of Kerala v. NM Thomas, AIR1976 SC 490(India).
[21] Ashoka Kumar Thakur v. UOI, (2008) 6 SCC 1(India).
[22] Pathumma v. State of Kerala, AIR 1978 SC771(India).
[23] Minerva Mills v. UOI, AIR 1980 SC 1789 (India).
[24]Minerva Mills v. UOI, AIR 1980 SC 1789 (India).
[25] Minerva Mills v. UOI, AIR 1980 SC 1789 (India).
[26]8TH Edition, MP Jain, Indian Constitutional Law, Lexis Nexis, pg 1472.
[27] Dalmia Cement (Bharat) Limited v. UOI, (1996)10 SCC104(India).
[28] Unnikrishnan v.State of Andhra Pradesh, AIR 1993 SC2178(India).
[29] Justiciability of ESC Rights�the Indian Experience, University of Minnesota, Human Resource Center,
[30] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 2 SCR 516.
[31] Sunil Batra VS. Delhi Administration, 1980 SCR (2) 557(India).
[32] Bandhua Mukti Morcha VS. Union of India, (1997) 10 SCC 549(India).
Also see People�s Union for Democratic rights VS. Union of India, 1983 SCR (1) 456(India).
[33] Olga Tellis VS. Bombay Municipal Corporation, 1986 AIR 180(India).
[34] M.C. Mehta VS. Union of India, 1987 SCR (1) 819(India).
[35] Sheela Barse VS. Union of India, 1986 SCALE (2)230(India).
[36] M.K. Sharma VS. Bharat Electronics Ltd. AIR 1987 SC 1792(India).
[37] Vishal Jeet VS. Union of India, 1990 SCR (2) 861(India).
[38] M.C. Mehta v. State of Tamil Nadu, [1996] RD-SC 1576(India).
[39] India Const. Art 41
[40] India Const. Art43
[41] K.Rajendran v. State of Tamil Nadu, (1982) 2 SCC 273(India).
[42] P & T Department v. Union of India (1988) 1 SCC 122(India). Also see Dharwad P. W. D. Employees Association v. State of Karnataka (1990) 2 SCC 396(India)
[43] Bandhua Mukti Morcha v. UO, (1984) 3 SCC 161(India).
[44] Vishakha v. State of Rajasthan, (1997) 6 SCC 241(India).
[45] National Textile Workers Union v. P. R. Ramakrishnan (1983) 1 SCC 249.
[46] Shanti Star Builders v. Narayan K. Totame (1990) 1 SCC 520(India).
[47] Olga Tellis VS. Bombay Municipal Corporation, 1986 AIR 180(India).
[48] Municipal Corp Delhi v. Gurnam Kaur, 1988 SCR Supl. (2) 929(India).
[49] Sodan Singh v. NDMC, 1989 SCR (3)1038(India).
[50] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (2001) 1 GLR 204(India).
[51] Consumer Education and Research Centre v. Union of India, 1995 AIR 922 (India).
, also see CESC Ltd. v. Subash Chandra Bose, 1992 AIR 573(India).
[52] MC Mehta v. UOI, 1987 SCR (1) 819(India).
[53] Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645(India).
[54] Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645(India).
[55] Unnikrishnan J.P. v. State of Andhra Pradesh,(1993) 1 SCC 645(India).
[56] 8TH Edition, MP Jain, Indian Constitutional Law, Lexis Nexis, 1473
[57] State of Bombay v. Balsara, AIR1951 SC 318(India).
[58] Also see, NK Doongaji v. State of Madhya Pradesh, AIR 1975 MP 1(India).
[59] Har Shankar v. Deputy E and T Commissioner, 1975 SCR (3) 254(India).

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